THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


THE    LAW 


OF 


EXPEKT  TESTIMONY. 


BY 

HENRY  WADE  ROGERS. 


Cuilibet  in  w,  arte  perito  est  crcdendum. 


ST.  LOUIS,  MO.: 

WILLIAM   H.    STEVENSON, 

LAW  PUBLISHER  AND  PUBLISHER  OF  THE 

CENTRAL  LAW  JOURNAL. 

1883. 


COPTRIGHT,   1883, 
BY 

HENRY  WADE  KOGERS. 

T 


St.  Louis,  Mo.:  Ptinled  by  the  Central  Law  Journal. 


TO  THE 

HONORABLE  THOMAS  M.  COOLEY,  LL.D. 

Of  the  Supreme  Court  of  Michigan, 
THIS   BOOK   IS    INSCRIBED, 

Iii  appreciation  of  his  friendship,  and  the  virtues  of  his 
private  life,  as  well  as  in  recognition  of  his  eminence  as 
a  jurist,  and  his  fame  as  a  judge. 


PREFACE. 


The  purpose  which  the  writer  had  in  mind  in  the  prepar- 
ation of  this  monograph,  was  to  furnish  to  the  practitioner 
a  more  extended  presentation  of  the  law  relating  to  expert 
testimony,  than  is  afforded  in  the  treatises  on  evidence. 
It  seemed  desirable  that  the  law  on  this  important  subject 
should  be  set  forth  with  more  of  detail  than  it  has  been 
found  practicable  to  do  in  the  general  treatises  of  the  law 
of  evidence.  The  cases  relating  to  expert  testimony  are  so 
numerous  and  so  diversified  in  character,  that  any  attempt 
to  bring  them  all  together,  and  give  to  them  that  con- 
sideration which  they  merit  in  a  work  devoted  to  the 
general  subject  of  evidence,  would  seem  to  be  out  of  the 
question.  Moreover,  within  the  last  few  years,  many  and 
important  cases  on  this  subject  have  been  decided  by  the 
courts,  which  have  not  yet  found  their  way  into  the  larger 
treatises  on  evidence.  It  was  for  the  purpose  of  supplying 
this  evident  want  that  this  work  was  undertaken. 

HENRY  WADE  ROGERS. 


TABLE  OF  CONTENTS- 


CHAPTER  I. 

SECTION. 

THE  ADMISSIBILITY  IN  EVIDENCE  OF  EXPERT  TESTIMONY.  1-14 

CHAPTER  II. 
THE  COMPETENCY  OF  EXPERT  WITNESSES,         ...         15-23 

CHAPTER  III. 

THE  EXAMINATION  OF  EXPERT  WITNESSES,  AND  THE  WEIGHT 

OF  TIIEIU  TESTIMONY, 24-42 

CHAPTER  IV. 
EXPERT  TESTIMONY  IN  MEDICINE,  SURGERY  AND  CHEMISTRY,       43-84 

CHAPTER  V. 
EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW,       .       .        .       85-104 

CHAPTER  VI. 
EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS,      .        .        .      105-127 

CHAPTER  VII. 
EXPERT  TESTIMONY  IN  HANDWRITING,  128-150 


Viii  TABLE  OF  CONTENTS. 

CHAPTER  VIII. 

VALUE 131  -165 

CHAPTER  IX. 

THE  RELATION  OK  SCIENTIFIC  BOOKS  TO  EXPERT  TESTIMONY,    1(»(»-IS(> 
CHAPTER  X. 

COMPENSATION  OF  EXPERTS, is7-lf)6 

APPENDIX. 

OPINIONS  ON  THE  VALUE  OF  EXPERT  TESTIMONY. 
ADDITIONAL  CASES.         .         .         .         ..... 


TABLE  OF  CASES  CITED. 


Abbey  v.  1,111,  5  Bing.  299,  p.  172. 

Avers   v.  Water  Commissioners,  29  X. 

Y.2','7,  pp.  39,44. 

Abbott  v.  Coleinan,  21  Kaii8.  250,  p.  199. 
Adams  v.  Dale,  29  Ind,  273,  p.  218. 
Adams   v.  Peters,    2    Car.  &  Kar.    722, 

p.  169. 

Albright  v.  Corley,  40  Tox.  106,  p.  l.r>5. 
Allen   v.  Hunter,  6  McLean,  o03,  pp.  3, 

116. 

Allen  v.  State,  3  Hum.  367,  p.  205. 
Allis  v.  Day,  14  Minn.,  516.  p.  222. 
Am.  Lite  Ins.  Co.  v.  Rosenagle,  27  P.  F. 

Smith,  507,  pp.  125,133. 
Anderson    v.  Anderson,    23    Tex.    639, 

p.  122. 
Anderson    v.    Folger,  11    La.  Ann.  260, 

p.  122. 

Andre  v.  Hardin,  32  Mich.  326,  p.  49. 
Anonymous,  37  Miss.  54,  p.  20. 
Alison   v.  Dwiglit,  18  Iowa,  244,  pp.  212, 

213. 

Anthony  v.  Smith,  4  Bo«.  503,  pp.  54,  79. 
Anthony  v.  Stinson,  4  Kaus.  22i,  pp,  59, 

222. 
Antomarchi    v.    Russell,  63  Ala.,    356, 

p.  16). 
Appleby  v.  Astor  Fire  Ins.  Co.,  54  X.  Y. 

253,  p.  Ml. 
Ardesco  Oil  Co.,  63  Penn.  St.  146,  pp.  24, 

175. 
Armstrong    v.  Burrows,  6    Watts,  266, 

p.  184. 

Arm  trong  v.  Lear,  8  Peters,  52,  p.  121. 
Ashland    v.   Marlborough,  99  Mass.  48, 

p.  71. 
Ashworth    v.    Kittridge,  12    dish.  194, 

p.  250. 
Atchison,  etc.R.  R.  Co.  v.  United  States, 

15  Ct.  of  CI.  126,  pp.  10,  12,  60. 
Atlantic,  etc   R.  R.  Co.  v.  Campbell,  4 

Ohio  St.  51*3,  p.  211. 
Attorney  General   Petitioner,  104  Mass. 

537,  p.  264. 
Atwitter  v.  Clancy,  107  Mass.  369,  pp.  169, 

172. 

Atwood  v.  Cornwall,  28  Mi<  h.  330,  p.  205. 
Aumick    v.  Mitt-hell,  82    Penn.  St.  211, 

p.  193. 
Avesoii  v.  Kinnaird,  6  East,  18-',  p.  75. 


B. 


Babcock  v.  Babcock,  46  Mo.  243,  p.  122. 
llabcock    v.   Middlesex   Sav.   liank,  28 

Con  u.306,  p.  4. 

Bacon  v.  Ciiarlton,  7  Cnsh.  581,  p.  75. 
Bacon  v.  Williams  18  Gray,  585,  pp.  185, 


Bailey  v.  McDowell,  2  Hair.  34,  p.  121. 
llailcy  v.  Pool,  13  Ired.  406,  p.  4. 
Baml  v.  Daly,  08  X.  Y.  548,  p.  142. 
Baker  v.  Haines,  6  Whart.  291  ,  p.  1<>8. 
Ball  v.  Fninklinite  Consol.  Co..  32  N.  J. 

Law,  102,  p.  122. 
Baltimore  &  Ohio  R.  R.  Co.  v.  Glenn.  28 

Md.  287,  p.  T-'S. 
Baltimore,  etc.  11.  R.  Co.  v.  Shipley,  39 

Md.  251,  p.  48. 
Baltimore,  etc.  R.  R.  Co.  v.  Thompson, 

10  Md.  76,  pp.  39,  155. 
Bank  ol    Commerce  v.  Dissell,  72  X.  Y. 

615,  p.  168. 
Bank  ot  Commonwealth  v.  Mudgett,  44 

X.  Y.  514,  p.  204. 
Bank  of  Pennsylvania  v.  Jacobs,  1  Pa. 

J  78,  p.  193. 

Barker  v.  Coleman,  35  Ala.  221,  p.  SO. 
Barker  v.  Coming,  110  Mass.  477,  p.  93. 
Burnc  it  v.  Allen,  3  H.  &  X.  376,  p.  165. 
Baron  D«  Bode's  Case,  8  Ad.  &  Ellis  (\. 

S.),208,  p.  127. 
Barriek  v.  City  of  Detroit,  1  Mich.  X.  P. 

135,  p.  241. 

Barrows  v.  Downs,  9  R.  1.  453,  p.  125. 
Barkman  v.  Hopkins,   11  Ark.  168,  pp. 

Barnes  v.  Ingalls,  39  Ala.  193,  pp.  163,  164. 
Barnard  v.  nellogg,  10  Wall.  h&J,  p.  169. 
Barlow  v.  Lambert,  28  Ala.  704,  pp.  168, 

Barber  v.  Merriam,  11  Allen,  322,  pp.  71, 

75,  98. 

Bates  y.  State.  63  Ala.  30,  p.  237. 
Baxter  v.  Abbott,  7  Gray,  71,  pp.  70,  88. 
Bayly  v.  Chubb,  16  Gratt.  284,  p.  120. 
Beaubieii  v.  Cicotte,  13  Mich.  459,  p.  92. 
Bearss  v.  Copley.  10  X.  Y.  95,  pp.  8,  26. 
Beauchamp  v.  Mudd,  Hardin  163,  p.  121. 
' 

189,  198. 
Beckwith  v.  Sydebotham,  1  Camp.  117, 

p.  142. 
Bedell  v.  Long  Island  R.  R.  Co,  44  X.  Y. 

367,  pp.  216,  221. 

Bedford  v.  Flowers,  7  Humph.  242,  p.  169. 
Beecher  v.  Dennistoii,  13  Gray,  354,  p. 

222. 

Beekman  v.  Plainer,  15  Barb.  550,  p.  222. 
Belieloutaine,  etc.  R.  R.  Co.  v.  Bailey,  11 

Ohio  St.  333,  p.  146. 
Belief  v.  Jones,  22  Ark.  92,  p.  91. 
Bellinger  v.  X.  Y.  Cent.  R.  It.  Co.,  23  X. 

V.  iiZ,  p.  44. 
Belairv.Uie  C.  &.  X.    \V.  R.  R.  Co.,  4:} 

Iowa,  667,  p,  14. 

Bennett  v.  Bennett,  Deady,  299,  p.  120. 
Bennett  v.  Fail,  20  Ala.  605,  pp.  77,79. 
Benedict  v.  City  of  Foil  du  Lac,  44  Wis. 

4%,  pp.  4,  1»,  159. 


eaucamp  v.  u,  arn  ,  p. 
Beach  v.  O'Riley,  14  W.  Va.55,p.  184. 
Beaumont  v.  Peikins,  1  Phill.  78,  pp. 


TABLE  OF  CASES  £1TED 


Benkarl  v.  Babcock,  2  Robt.  175,  p.  215. 
Benaway  v.  Conyne,  3  Chand.  244,  p  53. 
Benson  v.  McFadden,  50  Ind.  431,  p.  6. 
Berckman  v.  Berckman,  16  X.  J.  Eq.,  122, 

Berthonv.  Loughman,2  Starkie,25S,pp. 

150, 151. 

Berg  v.  Spink,24  Minn.  1:58,  p.  24. 
Berry  v.  State,  10  Ga.  511,  p.  91. 
Berliner  v.  Waterloo,  14  Wis.  378,  p.  120. 
Bestor  v.  Roberts,  58  Ala.  331,  p.  195. 
Betts  v.  Clifford,  1  Warwick  Lent  As- 
sizes, 1858,  p.  261. 
Beverly  v.  Williams,  4  Dev.  &  Batt.  236, 

p.  5. 

Bierce  v.  Stocking,  11  Gray,  174,  p.  115. 
Biesenthrall  v.  Williams,  1  Duv.  330,  p. 

131. 
Bills  v.  Citv  of  Ottumwa,  35  Iowa,  109, 

pp.  9, 153. 
Birch  v.  Ridgway,  1  Fost.  &  Fin.  270,  p. 

190. 
Bird  v.  Commonwealth,  21  Gratt.  800, 

pp.  2,  68  133. 

Bishop  v.  State,  30  Ala.  34,  p.  195. 
Bishop  v.  Spining,  38  Ind.  1*3,  pp.  39,  44. 
Bissell  v.  Ryan,  23  111.  570,  p.  169. 
Bissell  v.  Wert,  35  Ind.  54,  p.  211. 
Bitner  v.Bitnrr,  65  Perm.  St.  347,  p.  70. 
JiAby  v.  Montpt ' 

Vt,  125,  p.  147. 
Blackmail  v.  Johnson,  35  Ala.  252,  p.  81. 
Blackwell  v.  State,  13  Rep.  271,  p.  106. 
Blanchard  v.    Xew    Jersey  Steamboat 

Co.,3X.  Y.  Sup.  Ct.  771, 'p-  1*4- 
Blake  v.  People,  73  X.  Y.  5*6,  p.  6. 
Blizzard  v.  Applegate,  61  Ind.  371,  p. 

223. 

Blood  v.  Light,  31  Cal.  115,  171. 
Blodgett  Paper  Co.  v.  Farmer,  41  X.  II. 

401,  p.  173. 

Blumenthall  v.  Roll,  24  Mo.  113,  p.  158. 
Board  of  Commissioners  v.  Chambers, 

75  Ind.  409,  p.  224. 
Boardman  v.    Woodman,  47  X.  H.  121), 

pp.  23, 23,  41,  86. 

Bock  v.  Laumaii,  12  Harris,  4:55,  p.  139. 
Bodtish  v.  Fox,  23  Me.  90,  p.  169. 
Boehtinck  v.  Schneider,  3  Esp.  58,   p. 

Boies  v.  McAllister,  12  Me.  310,  pp.  81,  95. 
Bomgardncr  v.  Andrews,  53  Iowa,  638, 

p.  40. 

Booth  v.  Cleveland,  74  X.  Y.  27,  p.  172. 
Borland  v.  Wai  wrath,  33  Iowa,  133,  p.  63. 
Boston,  etc.  R.  R.  Co.  v.  Montgomery, 

119  Mass.  114,  p.  216. 
Boston,  etc.  R.  R.  Co.  v.  Old  Colony,  etc. 

R.  R.  Co.,  3  Allen,  142,  p.  211. 
Bowditch  v.  Soltyk,  99  Mass.  138,  p.  121. 
Bowen  v.  Boweu,  74  Ind.  470,  p.  226. 
Bowman  v.   VVoods,  4  G.  Greene,  441,  p. 

238. 

Bowles  v.  Eddy,  33  Ark.  645,  p.  123. 
Boydston  v.  Giltner,  3  Oreg.  118,  pp.97, 

Brabo  v.  Martin,  3  La.  R.  177,  p.    49. 
Brabbitts  v.  Chicago  &  X.  W.  R.  R.  Co.  38 

Wis.  289,  p  146. 
Bragg  v.  Colwell,  19  Ohio,  412,  pp.  196, 

Bradford  v.  Cooper,  1  La.  Ann.  323,  p. 

119. 
Brainard  v.  Boston,    etc.  R.  R.   Co.,  12 

Gray,  407,  p.  229. 

Braekett  v.  Norton,  4    'onn,  417,  p.  121. 
Branch,  etc.   R.   R.    Co.  v.  Xichols,  24 

Knns.  242,  p.  223. 

Brant  ley  v.  Swift,  24  Ala.  390,  p.  157. 
Bremer  v.  Freeman,  10  Moore  P.  C.  306, 

p.  139. 


Brehm  v.Gt.  Western  R.  R.  Co.  34  Barb. 

256, p.  59. 

Briggs  v.  Briggs,  20  Mich.  34,  p.  73. 
Briggs  v.  Morgan,  3  Philim.  325,  p.  100. 
Bristol  County  Savings  Bank  v.  Keavy, 

128Mass.2<i8,pp.  220,  230. 
Brim  hall  v.  Van  Campen,  8  Minn.  13,  p. 

122. 
Bristow  v.   Sequeville,  5  Exch.  275,    p. 

137. 
Brown  v.  Brown,  1  Hagg.  523,  pp.  100, 

101. 

Brown  v.  Brown,  10  Met,  573,  p.  167. 
Brown  v.  Chenoworth,  51  Tex.  469,  p.  49. 
Brown  v.  Foster,  113  Mass.  136,  p.  168. 
Brown  v.  Huffard,  69  Mo.  305,  pp.  -44,223. 
Btowu  v.Jackson,  2  Wash.  C.  C.  24,  p. 

169, 
Brown  v.  Kennedy,  33  L.  J.  Ch.   71;  33 

Beavan.  133,  40  J.  *  S.  217 ;  p.  222. 
Brown  v.  Leach,  107  Mass.  364,  p.  172. 
Brown  v.  Lester,  Ga.  Decis.  Pt.  1,  77,  p. 

80. 
Brown  v.  Mohawk  &  Hudson  River  R.  R. 

Co.,  1  How.  Ct.  App.  Cns.  52,  p. 23, 
Brown  v.  Moore,  32  Mich.  254,  p.  220. 
Brown  v.  Prov.  etc.  R.  R.  Co.,  12  R.  1.238, 

p.  208. 

Brobston  v.  Cahill,  64  111.  358,  p.  195. 
Brookes    v.  Tichboriie,  5   Exch.    929,  p. 

203. 

Brooke  v.  Townshend,  7  Gill,  24,  p.  92. 
Bryant  v.  Kelton,  1  Tex.  434,  p.  123. 
Buchman  v.  ^ta(e,  50  Ind.  1,  pp.  254,  257. 
Buckley  v.  Rice,  1  Plow.  125,  p.  4. 
Birffmu'v.  Harris,  5  R.  I.  250,  pp.  2,  153, 

159. 
Buffuni  v.  X.  Y.  Ceil.,  etc.  R.  R.  Co.,  4  R. 

1.221,  pp.  203, 22S. 

Burdick  v.  Hunt,  43  Ind.  381,  pp.  182, 195. 
Bnrnhani  v.  Mitchell,  34  Wis.  Ill,  p.  92. 
Burger  v.  Northern  'Pacific  R.  R.  Co.,  2 

Minn.  343,  pp.  20S,  222. 
Burns  v,  Welch,  8  Yerg.  117,  p.  161. 
Bush  v.  Jackson,  24  Ala.  273,  p.  77. 
Butcher  v.  B.mk,  2  Kans.  70,  p.  123. 
Buxton  v.  Som.  Pot.  Works,  1^1  Mass. 

446,  pp.37,  38. 


C. 


Cahwon  v.  Ring,  1  Cliffird,  592,  p.  163. 
Caleb  v.  State,  39  Miss.  721,  p.  85. 
Calkins  v.  State,  14  Ohio  St.  222,  pp.  180, 

190. 

Callahan  v.  Stanley,  57  Ca'.  479,  p.  166. 
Campion  v.  Kiile,  1  Me.  Carter,  229,  p.  122. 
Campbell  v.  Rickards,  2  Barn.  A  Ad.  840, 

pp.  8,  151. 

Campbell  v.  Russe'l.  9Iow^,337,  p.  166. 
Cantling  v.  Hannibal  etc.  R.  R.  Co.,  54 

Mo.  386,  pp.  208,  213. 
Cannell  v.  Phoenix  Ins.  Co.,  59  Me.  582, 

p.  161. 
Carpenter  v.  Blake,  2  Lans.  208,  pp.  34, 

40,  44. 

Carpenter  v.  Culvert,  83  111.  62,  p.  270. 
Carpenter  v.  Central  Park  R.  R.  Co.,  11 

Abb.  Pr.  416.  p.  148. 

Carpenter  v.  Dexter,  8  Wall.  5  3,  p.  122. 
Carpenter    v.    Eastern    Transportation 

Co.,  71  X.  Y.  574,  pp.  38,  142.     . 
Carperter  v.  Wait,  11  Cush.  257,  p.  155. 
Carcv  v.  Cincinnati  etc.  R.  R.  Co.,  5  Iowa, 

357.  p.  121. 

Carter  v.  Baker,  1  Sawyer,  512,  p.  59. 
Carter  v.  Hoehin,  2  Burr.  HK)5,p.  151. 
Carter  v.  Carter,  36  Mi<-h.  207,  p.  227. 
Carter  v.  State,  2  Carter.  619,  p.  2:58. 
Carter  v.  Thurston,  53  X.  H.  101,  p.  212, 


TABLE  OF  CASES  CITED. 


XI 


Cartwright  v.  Cartwright,  26  \V.  R.  684 

p.  137. 
Carew  v.  Johnston,  2  Soli.  &  Lef.  230,  p 

92. 
Castnerv.  Sliker,  63  X.  J.  Law,  95,  S.  C 

Ibid.  507,  pp.  5,  71. 
Cavendish  v.  Troy,  41  Vt.  99,  p.  9. 
Central  II.  It.  etc.  v.  Kelley,  58  Ga.  1  7 

pp.  4,  211. 
Cenu-al  It.  It.  Co.  v.  Mitchell,  03  Ga.  173 

pp.  30.  158. 
Central  Branch  etc.  R.  R.  Co.  v.  Nichols 

24  Ivans.  242,  p.  223. 
Central  Pacific  It.  It.  Co.  v.  Pearson,  "5 

Cal.  247,  p.  47. 
Chanrand  v.  Angerstein,  Peake  X.  P.  C 

61,  pp  8,  151. 
Chamboret  v.   Cagnet,  3  J.  &  S.  474.  p, 

214. 
Chamness  v.  Chaomeas,  53  Ind.  304.  p, 

Champ  v.  Commonwealth.  2  Met.  18,  p, 

1'.) 

Chanoine  v.  Fowler,  3  Wend.  173,  p.  131. 
Chandler  v.  Grieves,  2  II.  HI.  60S,  p.  119. 
Chandler  v.  Jamiaca  Pond  Aqueduct 

125,  Mass.  544.  pp,  23,  159. 
Chandler  v.  LeBarron,  45  Me.  534,  p.  20t. 
Cha  'C-e  v.  Indianapolis  etc.  Co.,  32  lad. 

472,  pp.  19.i,  1'Jfi,  268. 
Chase  v.  Lincoln,  31  Mass.  237.  p.  90. 
Chamberlain  v.  MaiUand,  5  B.  Monroe, 

448,  p.  131. 

Cheek  v.  State,  38  Ala.  227,  p.  151. 
Chicago  etc.  K.  It.  Co.  v.  George,  19  111. 

510,  p.  80. 

Chicago  v.  Greer,  9  Wall.  726,  p.  161. 
Chicago  &  Alton  R.  R.  Co.  v.  Springlield, 

&  Northwestern  K.  It.  Co.,  67  111.  105, 

pp.  22,  37. 

Choi-ley  v.  Holcot,  4  Term.  317,  p.  224. 
Choteau  v.  Pierre,  9  Mo.  3,  p.  120. 
Choice  v.  State,  31  Ga.  424,  pp.  59,  91,  92, 

269. 

Church  v   Ilubbard,  2  Oanch  187,  p.  123. 
Churchill  v.  Price,  44  Wi*.  542,  p.  21.. 
Cilley  v.  Cilley,  34  Me.  162,  p.  90. 
Cincinnati   etc,  Mut.  Ins.  Co.  v.  May,  20 

Ohio,  211,  pp.  37,44. 
Cincinnati  eic.  It.   1{.  Co.  v.   Smita,  22 

Ohio  St.  227,  ]).  147. 
City  of  IJrownsville  v.  Cavazos,  2  Woods, 

293  p.  120. 
City  of  Decaturv.  Fisher,  63  111  2-1,  p. 

City  of  Parsons  v.  Lindsay, 26  Kans.  426, 

pp.  8,  17. 
City  of  Chicago,  v.  McGiven,  78  111.  347, 

pp.  8,9,  13,  17. 

City  of  HIpoii  v.  Bittel,  30  Wis.  614. 
City  of   Indianapolis    v.  Scott,  72  lud. 

1S'6,  p.  158. 
City  of  Washington,  92  U.  S.  31,  pp.  144, 

168. 

Clapp  v.  Fullerton,  34  X.  Y.  190,  p.  94. 
Claggett  v.  Easterday,  42  Md.  617,  p.  156. 
Clague  v.  Hodgson,  16  Minn.  32',),  p.  155. 
Clark  v.  Uaircl,  9  X.  Y.  183,  p.  229. 
Clark  v.  Bruce,  19  Hun.  274,  pp.  11,  187. 
Clark  v.  Detroit  locomotive  Works;  32 

Mich.  MS,  pp.  37,  145. 
Clark  v.  Fisher,  1  Paige  Ch.  171,  pp.  13, 

66. 

Clark  v.  Rhodes,  49  Tenn.  206,  p.  195. 
Clark  v.  Rockland  Water  Power  Co.  52 

Me.  68,  pp.  9,  216. 
Clark  v.  Peri  am.  2  Atk.  337,  p.  8'.). 
Clark  v.  State,  12  Ohio,  483,  pp.  91,  270. 
Clark  v.  WllJett,  35  Cal.  5:U,  p.  171. 
Clark  v.  Wyatt.  15  Ind.  271,  p.  l!iO. 
Clary  v.  CiaVy,  2  IreU.  78,  p.  91. 


Clason  v.  City  of  Milwaukee. 30  Wis.  316, 

p.  159. 

Clay  v.  Alderson,  10  W.  Va.  49,  p.  195. 
Clay  v.  Robinson,  7  W.  Va.  348,  p.  195. 
Cla.xton's  Adm'r.  v.  Lexington,  etc.  R. 

It.  Co.,  13  Bush,  636,  p.  170. 
Cleveland,  etc.  R.  R.  Co.  v.  Ball,  5  Ohio 

St.  568,  pp.  8,  212. 
Cleveland,  etc.  K.  It.  Co.  v.  Perkins,  17 

Mich.  29(5,  p.  233. 

Clegs  v.  Fields.  7  Jones,  37,  p.  157. 
Clegg  v.  Levy,  3  Camp.  166,  p.  127. 
Clifford  v.  Richardson,  18  Vt.  620.  p.  12. 
Clinton  v.  Howard,  42  Conn.  294,  p.  0. 
Clussman  v.  Merkel,  3  Bosw.  J02,  p.  140. 
Cobb  v.  Ciiyof  Boston,  109  Muss.  43S, 

pp.  208,  218. 
Cobbett  v.  Ki  I  minster,  4  Fos.  &  Fin.  4,90, 

pp.  190,  204. 

Coburn  v.  Harvey,  18  Wis.  147,  p.  120. 
Cocks  v.  Purday,"2  C.  &  K.  269,  p.  12:i. 
Coffee  v.  Xe.-ly.  2  Heiek.  311,  p.  122. 
Cole  v.  Clark,  3  Wis.  323,  p.  8. 
Cullender  v.  Dinsmore,  55  X1.  Y.  200,  pp. 

166,  168. 
Collins    v     Go<U-froy,  1   Barn.  &  Adol. 

930,  p.  262. 
Colt  v.  People,  1  Parker  Cr.  Gas.  611,  p. 

Collier  v.  Simpson,  5  C.  &  P.  73,  pp.  29,. 

Colvill  v.  St.  Paul,  etc.   R.   R.  Co.,  19 

Minn.  2*3,  p.  212. 
'ommonwealth  v.  Brown,  14  Gray.  419, 

p.  95. 
Commonwealth  v.  Brown,  121  Mass.  69, 

p.  96. 
Commonwealth  v.  Cary,  2  Pick.  46,  p. 

205. 
ommonwealth  v.  Choate,  105  Mass.  451, 

p,  ni. 

ommonwealth   v.    Dorsey,    101   Mass. 

412,  p.  6. 
Commonwealth  v.  Fairbanks,  2  Allen, 

511,  p.  90. 
Commonwealth   v.  Knowlton,  2  Mass. 

534,  p.  120. 
Commonwealth  v.  Lenox,  3  Brew.  249, 

p.  83. 
Commonwealth  v.  Mullins,  2  Allen,  296, 

p.  40. 
Commonwealth  v.  Piper,  120  Mass.  1,35, 

p.  84. 
Commonwealth  v.  Pope,  10  J  Mass.  440, 

p.  6. 
Commonwealth  v.  Pomeroy,  117  Mass. 

148,  p.  89. 
Commonwealth   v.  Rich,  14  Gray,  835, 

pp.  70.  86. 
'ommonweulth  v.  Rogers,  7  Met.  500, 

p.  86. 
Commonwealth  v.  Sturtivant,  117  Mass. 

J22,  pp.  6,  111,  114. 
'ommonwealth    v.    Timothv,    8    Gray, 

4*0,  p.  5. 
Commonwealth  v.  Twitchell,  1  Brews. 

562,  p.  113. 
Commonwealth  v.  Webster,  5  Gush.  295, 

pp.  50,  182. 
Commonwealth  v.  Wilson,  1  Gray,  337, 

p.  240. 
Commonwealth  v.  Williams,  105  Mass. 

62,  p.  5. 
Comparet  v.  Jernegan,  5  Blackf.  375,  p. 

123. 
Comstock   v.    Smith,   20   Mich.    338,   p. 

232. 
;ondit  v.  Bla-  kwell,  19  X.  J.  Eq.  193,  p. 

132. 
:onn.  M.  L.  Ins.  Co.  v.  Ellis,  Adm'r.  89 

111.516,  p.  245. 


TA1JLE  OF  CASES  CITED. 


Conhocton  Stone  Road  Co.  v.  Buffalo, 

etc.  R.  R.  Co.,  10  X.  Y.  52:5.  p.  45. 
Continental  Insurance  Co.  v.  Delpench, 

82  Pa.  St.  225,  p.  4. 
Continental  Insurance  Co.   v.  Ilorton, 

23  Mich.  173,  p.  213. 
Consolidated  Real  Estate  &   Fire  Ins. 

Co.  v.  Cashow,  41  Md.  5'),  p.  125. 
Concord  R.  R.  Co.  v.  uroely,  3  Fos.  237, 

p.  13. 

Cook  v.  C'istner,  9  Cush.  2'j6,  p.  144. 
Cooke  v.  England,  27  Md.  4,  p.  157. 
Cook  v.  State,  24  X.  J.  Law,  845,  p>>.  13, 

15,94. 
Cooper  v.  Bockett,  4  Moore  P.  C.  433,  p. 

183. 
Cooper  v.  Cent.  R.  R.  Co.,  44  Iowa,  140, 

p.  146. 
Cooper  v.  Randall,  59  111.  317,   pp.  212, 

Cooper  v.  State,  23  Tex.  336,  pp.  19,  77,79, 

Cooper  v.  State.  53  Mi^s.  39?,  p.  213,  222. 
Corning  v.  Burden,  12  How.  252.  p.  163. 
Cornish  v.  Farm,  etc.  Fire  Ins.  Co.,  74 

N.  Y.  295,  p.  151. 

Corlis  v.  Little,  13  X.  J.  Law,  p.  5,  232. 
Corbett  v.  Underwood,  83  111.  324,  p.  16X 
Corbv  Ex'r.  v.  Weddle,  57  Mo.  452,  p.  1"5. 
Cottrill  v.  Myi-ick,  12  Me.  222,  pp.  8,  173. 
County  of  Cook  v.  H  inns,  10  Bradw.  24. 
Coughlin  v.  Poulson,  2  McArthur,  308, 

p.  88 

Covey  v.  Campbell,  52  Ind.  153,  p.  223. 
Cowan  v.  Beall,  1  McArthur.  27«>,  p.  -X7. 
Cowley  v.  People,  83  X.  V.  4.64,  pp.  30,  96. 
Crane  v.  Crane,  33  Vt.  15,  p.  91 
Craig  v.  Gerrish,  58  Xf.  H.  (-25  Alb.   Law 

J.  498).  p.  82. 

Crawford  v.  State,  2  Ind.  132,  p.  206. 
Ciawford  v.  Williams,  48  Iowa,  249,  p. 

239. 

Crawford  v.  Wolf,  23  Iowa,  168.  p.  208. 
Cresswell  v.  Jackson,  3  Fos.  &  Fin.  24, 

p.  190. 

Crouse  v.  Holman,  19  Ind.  30,  p.  223. 
C ro well  v.  Kirk,  3  Dev.  358,  p.  47. 
Crowe  Adin'r.  v.  Peters,  63  Mo.  429,  p. 

91. 
Cromwell  v.  Western  Reserve  Bank,  3 

Ohio  St.  406,  p.  8. 

Culver  v.  Dwight,  6  Gray,  444,  p.  6. 
Cummins  v.  State,  58  Alii.  3S7,  p.  4. 
«  uneo  v.  Bo-soni,  63  Ind.  524,  pp.  53,  65. 
Curtis  v.  Gano,  20  X.  Y.  426,  pp.  45,  160. 
Curtis  v.Martin.  1  Penm'ngton,  2'.'0,  p. 

122. 
Curtis  v.  St.  Patil,  etc.  R.  R.  Co.,  20  Minn. 

28,  p.  212. 
Curry  v.  Sta.e,  5  Xeb.  412,  p.  81. 

D. 

Da'zell  v.  City  of  Davenport,  12  Iowa. 

437.  p.  213. 
Dalrymple  v.  Dalrymple,  2  Hapg.  54,  p. 

Dainees  v.  Hale,  1  Otto,  13,  p.  121 
Dana  v.  Fiedler,  12  X.  Y.  40,  p.  167. 
Daniells  v.  Aldrich,  42  Mich.  58,  p.  40. 
Daniels  v.  Hudson   River  Fire  Ins.  Co., 

12  Cush.  416,  p.  151-166. 
Daniels  v.  Mosher,  2  Mich.  183,  p.  4. 
Danlorth  v.  Reynolds,  1  Vt.  2K5,  p.  123. 
Dauphin  v.  United  States,  6  Ct.  of  Cl. 

221,  p.  135. 

Davenport  v.  Ogg,  15  Kans.  363,  p.  53. 
Davis  v.  Mason,  4  Pick.  15(5,  p.  157. 
Dav  is  v.  Marl  borough,  2  Swanst.  113,  p. 


Davis  v.  Rogers,  14  Ind.  424.  p.  121. 
Davis  v.  State,  38  Md.  15,  pp.  8,  34,  84. 
Davis  v.  State,  35  Ind.   4W,  pp.  23,  40,  46. 
Dawso  <  v.  Callaway,  18  Ga.STS,  p.  4. 
Day  v.  State,  65  Ga."6i57,  p.  106. 
Di-.an  v.  Aveli.ig,  1  Robertson.  279,  p.  100. 
Dean  v.  McLean,  4S  Vt.  4  2,  p.  164. 
DeArmand  v.  Xeasmith,  32  Mich.  231,  p. 

236. 
Deer  Creek,    etc.  Co.  v.    Salsaman,  67 

Penn.  Sc.  415,  p.  212. 
f»elano  v.  Jopling,  1  Litt.  417,  p.  120. 
Delaware  Steam  Towboat  Co.  v.  Starrs, 

69  Penn  St.  36,  pp.  23,  24,  58,  142. 
Demerri  t  v.   Randall,  116  Mass.  331,  p. 

182. 

Denton  v.  State,  1  Swan,  279,  p.  75. 
Dennis  v.  Weeks,  51  Git.  24,  p.  9:. 
Depue  v.  Place,  7  Penn.  St.  429,  p.  193. 
De  Phue  v.  State,  44  Ala.  39,  pp.  49,  68. 
DeSoliry  v.  Laistre,  2  H.  &  J.  19  1  ,  p.  139, 
Detwiler  v.  G'-off,  10  Penn.  St.  376,  p.  156. 
Detroit,  etc.  R.  R.Co.v.  Van  Steiaburgh, 

17  Mich.  99,  p.  146. 
Devenbagh  v.  Devenbagh,  5  Paige,  554, 

pp.  100,  101. 

De  Witt  v.  Baily,  17  X.  T.  344,  p.  6. 
Dewitt  v.  Barley,  9  X.  Y,  371,  pp.  90,  92. 
Dnxter  v.  Hall,  16  Wall.  9,  pp.  37,  39. 
Dickinson  v.  Barber,  9  Mass.  218.  pp.  50, 

Dickinson  v.  Fitchburg.lSGray,  546,  pp. 

Dick'ins'on'v.  Gay,  7  Allen,  29.  p.  163. 
Dickie  v.  VaiiblecR.  5  Redf.  281,  p.  40. 
Dieken  v.  Johnson,  7  Ga.  484,  p.  91. 
Dillard  v.  State,  58  Miss.  368,  pp.  8,  13,  18, 

113. 
Dillebar  v.  Home  Life  Ins.  Co.  (X.  Y.), 


14  Cent.  L.  J.  158,  p.  40. 
s,  10  H 
165. 


.     .     . 

Di  Sora  v.  Phillips, 


. 

.  L.  Cas. 


Division  of  Howard  County.  15  Kans. 

1!)4.  p.  120. 

Dixon  v.  Dunham,  14  111.  324,  p.  169. 
Dodge  v.  Coflin.  15  Kans.  277,  p.  123. 
Doe  v.  Kslava,  11  Ala.  1028,  p.  120. 
Doe  v.  Suckermore,  5  Ad.  &  El.  703,  p. 

Doe  V7  Tarver,  R.  &  M.  141,  p.  189. 
Doe  v.  Wilson,  10  Moore  P.  C.  502,  p.  204. 
Uolph  v.  Barney,  5  Oregon,  191,  p.  120. 
Dole  v.  Johnson,  50  X.  H.  452,  pp.  25,  33, 

243. 

J)olz  v.  Morris,  17  X*.  Y.  Sup.  Ct.  2  2,  p.  37. 
Donaldson  v.  the  Mississippi,  etc.  R.  R. 

Co.,  18  Iowa.  291,  pp.  231,  236. 
Dorsey  v.  Dorsey,  5  J.   J.  Marsh.  280,  p. 

122. 

Dorsey  v.  Warfleld,  7  M<1.  65,  p.  92. 
Do.ster  v.  hrown,  25  Ga.  24,  p.  157. 
Dougherty  v.  Snyder,  15  S.  &R.  84,  p.  124. 
Dove  v.  State,  52  Teiin.  348,  p.  46. 
Downs    v.  Spragrue,  1  Abbott's  Ct.  of 

App.  Dec-is.  550,  p.  1H7. 
Doyle  v.  X.  Y'.  Eye  &  Ear  Infirmary,  80 

"N.  Y.  631,  p.  99. 

Drake  v.  Glover,  30  Ala.  3.-2,  p.  121. 
Drucker  Simon,  4  Daly,  515,  p.  220. 
Du  Bois  v.  Baker,  30  X   Y.  :,55,  pp.  179, 

182,  183,196. 
Duchess  Di  Liora's  Case,  10    HI.  Cases, 

640,  p.  138. 
Duches-i    of    Kingston's    Case.  Hargr. 

State  Trials,  243,  p.  70. 
Dunham's  Appeal,  27  C»nn.  193,  p.  44. 
Dunham  v.  Simons.  3  Hill,  609.  p.  211. 
Duntz  v.  Van  Beuren,  12  X.  Y.  Sup.  Ct. 

Duirell  v.  Bederly,  Holt's  X.  P.  Cases, 
283,  p.  151. 


TABLE  OF  CASES  CITED. 


Butcher  v.  Culver,  24  Minn.  5*1,  p.  120. 
D\  er  v.  Morris,  4  Mo.  -214,  p.  53. 
Dyer  v.  Smith,  12  Conn.  384,  p.  121. 

E. 

•Eagle- &  Phoenix  Manufacturing  Co.  v. 

Brown,  53  Ga.  -^40,  p.  2-.'7. 
Eag>m  v.  Co wau,  30  Law  Times,  223,  p. 

190. 
Earl  Nelson  v.  Lord  Britlport,  8  Beav. 

527,  pp.  128,  138. 
Ej.sttn.an  v.   Amoskeag  Manufacturing 

Co.  44  X.  H.  143,  p.  5. 
East  Pennsylvania  R.  H.  Co.  v.  Hotten- 

stine,  47  I'enn.  St.  30,  p.  2/2. 
Eaton  v.  Smith,  20  Pick.  156,  p.  166. 
Ebos  v.  State,  34  Ark.  520,  pp.  19,  81. 
Eb'trn  v.   Ziinpleman,  47  Tex.  503,  pp. 

193,  201. 

Ecles  v.  Bates,  26  Ala.  6"5,  pp.  76,  79. 
Eclelin  v.  Sanders,  Exr.,  8  Aid.  118,  p.  184. 
Edington  v.  .Etna  Life  Ins.  Co.,  77  N.  Y. 

564.  p.  7i». 
Ediev.  East  India  Co.,  2  Burr,  1226,  p. 

119. 
EdniMidsv.   City  of  Boston,   108  Mass. 

535,  p.  203. 

Eggers  v.  Eggers,  57  Ind.  461,  pp.  41,  65. 
Eggier  v.  IVopIe,  5(i  X.  Y.  642,  p.  82. 
Elfelt  v.  Smith,  1  Minn.  126,  p.  224. 
Ellingwood  v.  Bragg,  52  X.  IT.  48-1,  p.  4. 
Elton  v.  Larkius,  5  C.  &  P.  385,  p.  151. 
Elting   v.   Sturtevaiit,  41  Conn.   176,  p. 

226. 

Ely  v.  James,  123  Ma.s«.  36,  p.  139. 
Emery  v.  Berry.  8  Foster,  473,  p.  123. 
Emeruon  v.  Lowell  Gas  Light  Uo.,  6  Al- 
len, 146,  pp.  34,  70. 
Eniiis  v.  Smith,  It  How.  400,  p.  123. 
Enright  v.  liailr ,,ad  Co.,  33  Cal.  230,  p. 

Erd  v.  Chicago,  etc.  R.  R.  Co.,  41  Wis.  64, 

p.  229. 
Erickson  v.  Smith,  2  Abb.  App.  Dec-is., 

64,  p.  97. 

Errisman  v.  Errismun, 25111.,  136,  p.  55. 
Erwin  v.  Clark,  13  Mich.  10,  p.  16.). 
Estate  of  Brooks,  54  Cal.  471,  p.  91. 
Estate  of  Toomes,  54  Cal.  510,  p.  87. 
Evans  v.  Commercial  Ins.  Co.,  6  1C.  I.  47, 

p.  166. 

Evans  v.  Knight,  1  Add.  230.  p.  26% 
Evans  v.  People,  12  Mich.  27,  pp.  6, 14,  80, 

82. 
Evans  v.  Reynolds,  32  Ohio  St.  163,  p. 

Evans'villft  R.  R.  Co.  r.   Fitzpatiick,  10 

Ind.  120.  pp.  8,  211. 
Evansville    R.  R.  Co.  v.  Y  ung,  28  Ind. 

516,  p.  169. 
Exchange  Bank  v.  Colema  *>,  1  \V.  Va. 69, 

p.  169. 

Exparte  Dement,  53  Ala.  3X0,  pp.  25'.),  2f!l. 
Exparte  Thistlewood,  19  Vesey,  235,  p. 

231. 
Exyarte  Wbitehea<1,  1  Merivule,  127,  p. 

231. 
Eyerman  v.  Shcchan,  52  Mo.  221,  pp.  7, 

171. 


F. 


rail-child  v.  Bascomb,  35   Vt.415,  pp.  42, 

47,  50,  70. 
Fail-child  v.  M.  C.  R.  R.  Co.,  8  Bradw. 

591,  p.  2.'6. 

Fail-bank  v.  Hughson,  13  Rep.  8,  p.  2°.. 
.Fin-roll  v.  Brenimn,  :!-J  Mo.  323,  p.  47. 
i-'arr  v.  bwan,2  Pa.  St.  215,  p.  i57. 


Feabert  v.  Turst,  Pre.  Ch.207,  p.  121. 
Fenwick  v.  Bell,  1  Car.  &  Kir.  311,  p.  142. 
Ferguson  v.  Hubbell,  2(5  Hun,  250,  pp.  17, 

Ferguson  v.  Stafford,  C3Ind.  162,  pp.  223, 

Fiefderv.  Collier,  13  Ga.  496,  p.  91. 
Filer  v.  X.  Y.  Cent.  R.  R.  Co..  49  X.  Y.  42, 

pp.  40,  79. 
First  Baptist   Church  v.  Brooklyn  Fire 

Ins  Co.,28X.  Y.  153,  p.  166. 
First  National  Bank  of  Omaha  v.  Lier- 

man,  5  Xeb.  247,  p.  196. 
First  Fational  Bank  v.  Robert,  41  Mich. 

709,  pp.  195,204. 

Fish  v.  Dodge,  4  Demo,  311,  p.  211. 
Fitzgerald  v.  Hay  ward.  50  Mo.  516,  p.  4. 
Fleming  v.  Delaware,  etc.  Canal  Co.,  8 

Hun.  358,  p.  21.. 

Fletcher  v.  Seekel,  1  R.  1.267,  p.  59. 
Florey's  Exrs.  v.  Florey,  24  Ala.  247,  p. 

91. 

Flyiin  v.  Wohl.  10  Mo.  App.  582,  p.  233. 
Flynt  v.  Bodenhamer,  80  X.  C.  205,  pp. 

23,  58,  62,  79,  268. 
Fogg  v.  Dennis,  3  Humph.  47,  pp.  195, 

204. 
Folkes  v.  Chadd,  3  Douglass,  175,  pp.  8, 

159, 163. 

Foltz  v.  State.  83  Ind.  215,  p.  6. 
Forbes  v.  Caruthers,3  Yeutes,  527,  pp.  4, 

9,  157. 

Forbes  v.  Howard,  4  R.  T.  366,  p.  203. 
Forgery  v.  First  Xational  Bank.  66  Ind. 

123.  pp.  23,  27,  58,  195. 
Forsyth  v.  Preer,  62  Ala.  443,  p.  121. 
Ford  v.  Tirrell,  9  Gray,  40 1,  p.  162. 
Foster  v.  Brooks,  6  Ga.  290,  p.  91. 
Foster  v.  Taylor,  2  Overtoil,  191,  p.  122. 
Foster's  Will,  34  Mich.  21,  p.  267. 
Foster  v.  Ward,  75,  Ind.  594,  p.  213. 
Fountain  v.  Brown,  38  Ala.  72,  p.  81. 
Frank  v.  Chemical  Xational  Bank,  37  X. 

Y.  Snp.Ct.30,  p.180. 
Frantz  v.  Ireland,  66  Barb.  386,  p.  172. 
Fraser  v.  Tnpper,  29  Vt.  409,  pp.  17,  154. 
Frazerv.  Je unison, 43  Mich.  206,  pp.  6, 40, 

55,  250. 
Frankfort,  etc.  R.  R.  Co.  v.  Windsor,  51 

Ind.  233.  p.  228. 
Freemouit  v.  Dedire,  1  P.  Wms.  430,  p. 

121. 

Freeman  v.  People,  4  Denio,  9,  p.  89. 
Firth  v.  Barker,  2  .Johns.  334,  p.  169. 
Frost  v.  Blanc-hard,  97  Mass.  155,  p.  4. 
Fulton  v.  Hood,  34  Penn.  St.  365,  p.  183. 


G. v.G. 2  Prob.  &  Div.287,pp.  100, 

102. 
Galena,  etc.  R.  R.  Co.  v.  Haslem,  73  111. 

494,  p.  229. 
Gartside    v.  Conn.  Mut.  Life  Ins.  Co.,  8 

Mo.  App.  593,  p,  74. 
Garfleld  v.  Kirk,  (35  Barb.  464,p.223. 
Garrett's  Case,  71  X.  C.  53,  p.  104. 
Gardner  v.  Lewis,  7  Gill,  379,  p.  123. 
Gardner  v.  People,  6  Parker's  Cr.  Cas. 

155,  p.  84. 

Gassenheimcr  v  State,  52  Ala.  314,  p.  5. 
Gauntlet!  v.  Whitworth,  2  C.   &  K.  720, 

p.  220. 
Gavick  v.  Pacific  R.  R.  Co.  49  Mo.  274,  pp. 

13, 14. 

Gaylor's  Appeal,  43  Conn.  82,  p.  140. 
Getchell  v.  Hill,  21  Minn.  464,  p.  42. 
Geylin  v.  Villeroi.  2  Houston,  311,  p.  165. 
Gibson  v.  BiuUl,  32  L.  J.   Ex.  132,  S.  C.  2 

11.  &  C.  9-2,  p.  224. 


TABLE  OF  CASES  CITED 


Gibson  v.  Cincinnati  Enquirer,  5  Cent. 

Law  J.  3bO,  p.  165. 
Gibson  v.  Gibson,  9  Yerg.  329,  pp.  47,  80 

90 

Gilbert  v.  Kennedy,  22  Mich.  117,  p.  220. 
Gilman  v.  Gard,  29  Ind.  291,  p.  226. 
Gilman  v.  Town  of  Stratford,  50  Vt.  725, 

p.  42. 
Goldstein  v.  Black,  50  Cal.  464,  pp.  180, 

181. 

Goldsmith  v.  Sawyer,  46  Cal.  200,  p.  11.}. 
Goodtitle  v.  Braham,  4  Term,  497,  p.  1*2. 
Goodyear  v.  Vosburgh,  63  Barb.  154, 

p.  182. 

Gordon  v.  Price,  10  Ired.  3a5,  p.  206. 
Gossler   v.  Eagle    Sugar   llelinery,  10? 

Mass.  331,  pp.  24,  115. 
Gotlieb  v.  Hartman,  3  Col.  53,  p.  39. 
Graves  v.  Keaton,  3  Coldw.  8,  p.  120. 
Grand  Rapids,  etc.  It.  li.  Co.  v  Martin, 

41  Mich.  672,  p.  66. 
Grattan  v.  Metropolitan  Life  Ins.  Co.  31 

'N.  Y.  Sup.  Ct.  43,  p.  73. 
Grant  v.  Thompson'  4  Conn.  '20:},  pp.  88, 

90. 
Great  Western  R.  R.  Co.  v.  Ha  worth,  3fl 

111.  349,  p.  161. 

Green  v.  Aspinwall,  1  City  Hall  Recor- 
der, 14,  p.  236. 
Green  v.  City  of  Chicago?  97  111.  372,  p. 

Grigsby  v.  Clear  Lake  \V  a'  er  Works  Co., 

40  Cal.  396,  p.  159. 

Griffith  v.  Spratley,  1  Cox  Ch.  3<=!9,  p.  231. 
Griffin  v.  Town  of  Willow,  43  Wis.  50!l, 

pp.  4,  170. 

Gueting  v.  State,  66  Ind.  94,  pp.  40,' 86. 
Guiterman  v.  Liverpool,  etc.  Steamship 

Co.,  83  N.  Y.  358,  pp.  37,  39,  44,  143. 
Gulf  City  Ins.  Co.  v.   Stephens,  52  Ala. 

121,  p.  23. 

II. 

H.  v.  P.  3  Prob.  &  Div.  126,  pp.  100, 103. 
Haas  v.  Choussard,  17  Tex.  592,  p.  156. 
Haggerty  v.  Brooklyn,  etc.  R.  R.  Co.  61 

N.  Y.  624,  pp.  43,48. 
Hagadorn  v.  Connecticut  Mut.  Life  Ins. 

Co.  29  N.  Y.  Sup.  Ct.  251,  pp.  42,  46. 
Haight  v.  Kimbak-,  51  Iowa,  13,  p.  214. 
Hall  v.  Costello,  48  X.  H.  179,  p.  134. 
Hale  v.  Ross,  3  N.  J.  Law,  373,  p.  132. 
Haley  v.  State,  63  Ala.  S9,  p.  166. 
Hamel  v.  Panet,  3  Quebec  Law  R,  173,  p. 

183. 

Hames  v.  Brownlee,  63  Ala.  277,  p.  4. 
Hamilton  v.  Des  Moines  Valley  It.  R. 

Co.  36  Iowa,  31,  p.  9. 
Hamilton  v.  Xickerson,  13  Allen,  351,  p. 

169. 
Hammond  v.  Woodman,  41  Me.  177,  p. 

155. 
Hand  v.  Brookline,  126  Mass.  324,  pp.  24, 

34, 171. 

Handley  v.  Gandy,  28  Tex.  211,  p.  193. 
Hanover  Water  Co.  v.  Ashland  Iron  Co. 

StPenn.  St  2S4,  p,  229. 
Harnett  v.  Garvey,  0(5  X.  Y.  641,  pp.  40, 

222. 
Harris  v.  Panama  R.  R.  Co.,  3  Bosw.  1, 

p.  241. 
Harrison  v.  Harrison,  4  Moore  P.  C.  96, 

p.  103. 
Hart  v.  Hudson  River  Bridge  Co.,  84  X, 

Y.  56.  pp.  13, 158. 
Hart  v.  Vidal,  8  Cal.  56,  p.  223. 
Hartford  Protection  Jus.  Co.  v.  Harmer, 

2  Ohio  St.  452,  p.  9,  14",  150. 
Hartman   v.  Keystone,  21  Venn.  St.  466, 

pp.  150.  151,232. 


Ilarland  v.  Lilieuthal,  5:5  X.  Y.  438,  p.  223. 
Hardy  v.  Merrill,  56  X.  II.  ±27,  pp.  '.«),  91. 
Harford  v.  Morris  2  Hagg.  430,  p.  ,27. 
Harris  v.  Panama  R.  K.  Co. ,3  Bosw.  7, 

p.  117. 

Harris  v.  Rathbun,  2  Abbott,  328,  p.  166. 
Harvey  v.  State,  40  lud.  516,  p.  249. 
Haskins  •  v.  Hamilton   Mut.   Ins.   Co.,  5 

Gray,  4l!2,  pp.  218,  219. 
Haskins  v.  Warren,  115  Mass.  514,  p.  168. 
Ha.-Ucll  v.  Mitchell,  53  Me.  466,  p.  212. 
Hastings  v.  Rider,  99  Mass.  625,  p.  90. 
Hastings  v.  Steamer  Uncle  Sam,  10  Cal. 

341,  p.  9. 

Hathorii  v.  King,  8  Mass.  371,  p.  86. 
Hathaway's  Adm'rs.    v.    National  Life 

Ins.  Co.,  48  Vt.  335,  pp.  40,  46,  70. 
Haulenbeek  v.  Cronkright,  23  X.  J.  En. 

413, p.  2aO. 
Haverhill    Loan    Assoc.    v.    Cronin,    4 

Allen,  141,  p.  50. 

Haver  v.  Tenney,  :j6  Iowa,  80,  p.  161. 
Hawkins  v.  Grimes,  13  B.  Monr.  267,  pp. 

193,  195. 

Hawkins  v.  S-iite,  2.3  Ga.  207,  p.  4. 
Hawes  v.  X.  E.  Ins.  Co.,  2  Curtis,  220,  p. 

,150. 
Haycock  v.  Greup,  57  Penn.  St.  438,  p. 

Hay  ward  v.  Knapp,  23  Minn.  430,  p.  164. 
Haywood  v.  Rodgers,  4  East,  590,  p.  151. 
Hayes  v.  Ottawa,  etc.  R.  R.  Co.,  54  111. 

373,  p.  229. 

Hayes  v.  Wells,  34  Md.  513,  p.  4. 
Haynes  v.  Mosher,  15  How.  Pr.  216,  p. 

Hazleton  v.  Union  Bank  Co.,  32  Wis.  34, 

p.  195. 

Hazzard  v.  Vickery,  78  111.  64,  p.  195. 
Head  v.  Margrave,  14  Cent.  Law  J.  388, 

pp.  61,  222. 
Hea_ld  v^  Thing,  45  Me.  392,  pp.  1,  22,  34, 

75,  267. 
Hearne  v.  Xew  England  Mut.  Ins.  Co.,  3 

Clifford  C.  C.  318,  p.  166. 
Heath  v.  Glison,  3  Oregon,  67,  p.  97. 
Heath  v.  Watts  Prerog.  1  Ca&es  in  Eng. 

Ecc.  Cts.  43,  note  3,  p.  189. 
Heathcote  v.  Paignon,  2  Brown's  Ch. 

167,  pp.  230,231. 

Heberd  v.  Myers,  5  Ind.  94  p.  123. 
Hemphill  v.  Hank  of  Alabama,  6  Sin.  & 

M.  144,  p.  122. 
llempstead   v.  Reed,   6   Conn.   480,    p. 

121. 

Hess  v.  Ohio,  5  Ohio.  6.  p.  205. 
Hewlett  v.  Wood,  55  N.  Y.  635,  p.  94. 
Hicks  v.  Person,  19  Ohio,  426,  p.  196. 
Hickmaii  v.  State,  38  Tex.  191,  p.  90. 
Higgins  v.  Carlton,  28  Md.  115,  pp.  4,  9. 
Higgins  v.  Dewey,  107  Mass.  494,  pp.  17, 


liggi 
154. 


Higbee  v.  Guardian  Mut.  Life  Ins.  Co., 

66  Barb.  412,  p.  71. 
Higbie  v.  Guardian  Mut.  Life  Ins.  Co.. 

53  X.  Y.  603,  p.  80. 
Hill  v.  Lafayette  Ins.  Co.,  2  Mich.  476, 

pp.  9,  151. 
Hill  v.  Portland,  etc.  R.  R.  Co.,  55  Me. 

444,  pp.  37,  147. 

Hill  v.  Sturgeon,  28  Mo.  323,  p.  145. 
Hills  v.  Home  Ins.  Co.  129  Mass.  345,  pp. 

22,  221. 

Hinckley  v.  Kersting,  21 111.247,  p.  221. 
Hinds  v.  Harbon,  58  Ind.  124,  p.  175. 
Hitchcock  v.  Clendinan,  12  Beav.  534,  p. 

136. 

Hoard  v.  Peck,  56  Barb.  202,  pp.  39,  77. 
Hoare  v.  Silverlock,  12  Ad.  &  El.  624,  p. 

165. 
Hobby  v.  Dana,  17  Barb.  Ill,  p.  151. 


TABLE  OF  CASES  CITED. 


XV 


Hobbs  v.  Memphisi,  etc.  R.  K.  Co.,  56 

Tenn.  874,  p.  122. 

Iloener  v.  Koch,  b4  111.  40*,  pp.  97,  99. 
Hoes  v.  Van  Alstyne,  20  111.  202,  pp.  j25, 

Hoitt  v.  Moulton.l  Forster,  58fi,  p.  209. 
Hollitnan  v.  Cabanne,  43  Mo.  568,  p.  4. 
Holiiian  v.  Kins?,  7  Met.  :<S4.  p.  139. 
Holden-v.  Robinson,  <;:>  Me.  216,  p.  4. 
Hollenbeck   v.  Rowley,  8  Allen,  4T3,  p. 

Homer  v.  DOIT,  10  Mass.  26,  p.  169. 
Homer  v.  Tannton,  5  H.  Jc  N.  661,  p.  165. 
Hopper  v.  Commonwealth,  6  Gratt.  684, 

p.  53. 
Hopper  v.  Ludlum,  41  N.  J.  Law,  162,  p. 

222. 
Hopper  v.  Moore,  5  Jones  Law,  130,  pp. 

125,  139. 

Hook  v.  Stovall,  30  Ga.  418,  p.  7. 
Hook  v.  Stovall,  26  Ga.  704,  p.  79. 
Home  v.  Williams,  12  Ind.  324,  pp.  47, 

Hosiord  v.  Nichols,  1  Paige,  220,  pp.  121, 

122. 

Hough   v.  Cook,  69  111.  581,  pp.  203,  221. 
House  v.  Fort,  4,  Blackf.  293.  p.  116. 
Houston,  etc.   H.  R.    Co.  v.   Knapp,  51 

Tex.  592,  pp.  212,  218. 
Houston,  etc.  R.  R.  Co.  v.  Smith,  52  Tex. 

178, p.  5. 

Hovey  v.  Chase,  52  Me.  304,  p.  40. 
Hovey  v.  Sawyer,  5  Allen,  554.  pp.  13,  14. 
Howard  v.  Patrick, 43  Mich.  128,  p.  204. 
Howard  v.  Providence,  6  R.   1.  516,  pp. 

24,  58. 
Howell  v.  Taylor,  18  X.  Y.  Sup.  Ct.  214, 

p.  94. 
Hoyt  v.  Long  Island  R.  R.  Co.,  57  N.  Y. 

678, p.  147. 

Hoyt  v.  McNeil,  13  Minn.  390,  p.  122. 
Hubble  v.  Osborn,  31  Ind.  249,  p.  54. 
Hudson  v.  Draper,  5  Fisher's  Pat.  Cas. 

256,  p.  163. 

Hudson  v.  state,  61  Ala.  334,  p.  229. 
Huffman  v.  Click,  77  N.  C.  55,  pp.  241,244. 
Huff  v.  Xiins,  11  Neb.  364,  p.  204. 
Humphries  v.  Johnson,  20  Ind.  190,  pp. 

8,  59,  64. 
Hunt's  Heirs  v.  Hunt,  3  B.  Monr.  577,  p. 

91. 
Hunt  v.  Lowell  Gaslight  Co.,  8  Gray,  169, 

p.  38. 
Hunt  v.  State,  9  Tex.  Ct.  ot  App.  16<5,  pp. 

39,  74. 
Hurst  v.  The  C.  R.  I.  &  P.  R.  R,  Co.,  49 

Iowa,  76,  pp.  40,  74. 
HVIIPS  v.  McDermott,82  N.  Y.  41,  pp.  1:52, 

"   198,  !!«.- 
Hyde  v.  Woolfok,  1  Iowa,  159,  pp.  27,  181, 

198. 


Illirois  Cent.  R.  R.  Co.  v.  Sutton,  42  111. 

438, p.  75. 

Inge  v.  Murphy,  10  Ala.  885.  p.  139. 
liigham  v.  Hart,  11  Oliio  255,  |>.  139. 
Inglebright  v.  Hammond,  19  Ohio,  337, 

p.  169. 
Inhabitants  of  West  Newbury  v.  Chase, 

5  Gray,  421,  p.  212. 

Innerarity  v.  Minis,  1  Ala.  660,  p.  123. 
//*  re  Clkiuot's  Champagne,  3  Wall.  114, 

p.  233. 
In  re  Fennerstein's  Champagne, 3  Wall. 

145, p.  233. 
In  re  Springer,  4  Penn,  Law  J.  275,  pp. 

50,  59. 
In,  reTodd,  19Beav.  582,  p.  135. 


In  the  Goods  of  Hindmarch,  1  P.  A  M. 

307,  p.  184. 
In  the  Matter  of  Roelker,  1  Sprague,276, 

p.  237. 

Irving  v.  McLean.  4  Blackf.  52,  p.  121. 
Isabella  v.  Peot,  2  La.  Ann.  387,  p.  123. 


J. 


Jacob's  Case,  5  Jones,  259,  p.  104. 
Jackson  v.  Beling.  21  La.  Ann.  377,  p.  169. 
Jackson  v.  Edwards,  7  Paige  Ch.  386,  pp 

231,236. 
Jackson  v.  X.  Y.  Cent.  R.  R.  Co.,  2  Sup. 

Ct.  653,  p.  223. 

James  v.  Bostwick,  Wright,  142,  p.  166. 
James  v.  Hodsden,  47  Vt.  127,  p.  160. 
Jameson  v.  Drinkald,  12  Moore,  148,  pp. 

37,  p.  142. 

Jarrett  v.  Jarrett,  1 1  W.  Va.  627,  p.  269. 
Jarvisv.  Furman,'25  Hun,  X.    Y  393,  p. 

230 
Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend.  72, 

p.  151. 
Jeffersonville  R.  R.  Co.  v.  Lanham,  27 

Ind.  171,  pp.  147,  172. 
Jerry  v.  Townshend,  9  Md.  145,  p.  39. 
Jevne  v.  Osgood,  57  111,340.  p.  222. 
Jewell  v.  Center,  25  Ala.  498,  p.  119. 
Jewett  v.  Draper,  6  Allen,  434,  p.  184. 
Joe  v.  State,  6  Fla.  591,  p,  110. 
Johnson  v.  Chambers,  12   Ind.    112,  p. 

121. 

Johnson  v.  State,  2  Ind.  652,  p.  53. 
Johnson  v.  Thompson,  72  Ind.  167,  pp. 

58,  226. 
Jonau  v.  Ferrand,  3   Rob.  366,  pp.  47, 

222. 

Jones  v.  Finch,  37  Miss.  468,  p.  205. 
Jonej  v.  Lanev,  2  Tex.  342,  p.  122. 
Jones  v.  Maffett,  5  S.  A  R.  523,  pp.  131, 

Jones  V.  State,  11  Ind.  357,  p.  206. 

Jones  v.  State.  71  Ind.  66,  p.  16. 

Jones  v.  Tucker,  41  X.  H.  547,  pp.  2,  8,  10, 

23.  25,  79. 
Jones  v.  Trustees,  Ind.  R.  47,  pp.    238, 

249. 
Jones  v.  White,  11  Humph.  268,  pp.  2,63, 

Jordan  v.  Osgood,  109  Mass,  457,  p.  172. 
Joyce  v.  Maine  Ins.  Go.,  45  Me.  168,  p. 

151. 
Judah  v.  McXamee,    3  Blackf.   269,  p. 

224. 

Jumpertz  v.  People,  21  111  >  374,  p.  193. 
Junction  R.  R.  Co.  v.  Bank  of  Ashland, 

12  Wall.  226,  p.  120. 
Jupitz  v.  People,  34  111.  516,  p.  161. 


Kansas  Pacific  R.  R.  Co.  v.  Miller,  2  Col. 
442,  p.  6. 


Keables  v.  Christie,  47  Mich.  595,  p,  213. 

:ush.  457,  p.  50. 
Keith  v.  Tilford;i2  Xeb.  271,  p.  153. 


Keith  v.  Lothrop,  10  Ci 


Keithsburg,  etc.  R.  R.  Co.  v.  Henry,  79 

111.  290.  pp.  58,  212,  229. 
Keller  v.  N.  Y.  Cent.  U.  R.  Co.,  2  Abbott's 

App.  Decis.,  480,  pp.  14,  37. 
Kellv's  Heirs  v.  McGuire,  15  Ark.  555,  p. 

92. 

Kendall  v.  Gray,  2  Hilton,  302,  p.  225. 
Kenda.l  v.  May,  10  Allen,  59,  p.  226. 
Kennedy  v.  Brown,  13  C.  B.  (N.  8.)  677,  p. 

Kennedy  v.  People,  39  X.  Y.  245,  pp.  13 


TABLE  OF  CASES  CITED. 


Kenny  v.  Clarkson,  1  Johnson,  385,   p. 

123. 
Kenney  v.  Van  Home,  1  Johns.  394,  p. 

134. 
Kermott   v.  Ayer,  11  Mich.  181,  pp.  123, 

23'* 
Kern  "v.  South  St.  Louis  Mutual  Ins.  Co., 

40  Mo.  19,  p.  157. 
Kernin  v.  Hill,  37  111.  20%  p.  193. 
Kershaw  v.  Wright,  115  Mass.  361,  p.  1G8. 
Kessel  v.  Albetis,  56  Uarb.  3(12,  p.  120. 
Key  v.  Thompson,  2  Hannay  (X.  B.),  224, 

p,  39. 
Kilbourue  v.  Jennings,  38  Iowa,  533,  p. 

Kilgore  v.  Cross,  1  Fed.  Rep.  582,  p.  92. 
King  v.  Donahue,  110  Mass.  155,  pp.  196, 

204. 
King  v.  N.  Y.  Cent.  R.  R.  Co.,  72  N.  Y.  607, 


pp.  5,  J70. 
Kinle 


Kinley  v.  Crane,  34  Perm.  St.  146,  p.  157. 
Kinne  v.  Kintie,9  Conn.  102,  p.  88. 
Kinney  v.  Flynn,  2  R,  I.  319,  p.  193. 
K  pner  v.  Biebl,28  Minn.  -  ,  pp.  11,  17, 

24,154. 
Kirksey  v.  Kirksey,  41  Ala.,  626,  pp.  190, 

193. 

Kline  v.  Baker,  99  Mass.  254,  p.  139. 
Kline  v.  The  K.  C.,  St.  J  ,  etc.  R.  R.  Co., 

50  Iowa,  656,  p.  9,  15,  81. 
Knapp  v.  Abell.  10  Allen,  85,  p.  122. 
Kuapp  v.  Monell   (N.   Y.  Sup.   Ct.),  15 

Cent.  L.  J.  281,  p.  272. 
Knox  v.  Clark,  123  Mass.  246. 
Knoll  v.    State,  The  Reporter,   18S2,  p. 

381,  pp.  242,  271. 
Koons  v.  St.  Louis  &  Iron  Mountain  R. 

R.  Co.,  65  Mo.  592,  p.  5. 
Koons  v.  The  State,  36  Ohio  St.  195,  p. 

199. 

Kopke  v.  People,  43  Mich.,  41,  p.  131. 
Koster  v.  Noonan,  8  Daly,  232,  p.  171. 


L. 


Lacon  v.  Higgins,  3  Starkie  (N.  P.)  178, 
p.  131. 

Lake  v.  People,  12  N.  Y.  358;  s.  c.,  1  Par- 
ker Cr.  Cas.  495,  pp.  34, 41, 79,  89. 

Lamoure  v.  Caryl,  4  Denio,  373,  p.  216. 

Lancaster  v.  Lancaster's  Trustees,  78 
Ky.  200,  p.  232. 

Lands  v.  Lands,  1  Grant,  248,  p.  90. 

Lane  v.  Wilcox,  55  Barb.  615,  p.  154. 

Lapham  v.  Atlas  Ins.  Co.,  24  Pick.  1,  p. 
143. 

Laros  v.  Commonwealth,  84  Penn.  St. 
200,  p,  50. 

Laughlinv.  State,  18  Ohio,  99,  p.  53. 

Lawrence  v.  Boston,  119  Mass.  126,  p. 
23. 

Lawrence  v.  Dana,  4  Clifford,  1,  p.  163. 

Lawrence  v.  Hudson,  59  Tenn.  671,  p.  4. 

Lawton  v.  Chase,  108  Mass.  238,  pp.  23, 

Leathers    v.    Salvor    Wrecking  Co..    2 

Wood,  680,  p.  202. 

Lee  v.  Mathews,  10  Ala.  682,  p.  123. 
Lcgg  v.  Drake,  21  Ohio,  286. 
Lewg  v.  Legg.  8  Mass.  99,  p.  122. 
Lehrnickev.  St.  Paul,  etc.  R.  R.  Co.,  19 

Minn.  464,  p.  229. 
teiijhton  v.  Sargent,  11  Foster,  120,  p. 

Leitcii  v.  Atlantic  Ins.  Co.,  66  N.  Y.  100, 

pp.  144,  150. 
Leopjold  v.  Van  Kirk,  29  WIs.,  548,  pp.  49, 

Lessee  of  Forbes  v.  Caruthers,  3 
Yeates.527,  p.  3. 


Lessee  of  Hoge  v.  Fisher,  1  Peters  C.  C- 

163,  p.  86. 

Lester  v.  Pittsford,7  Vt.  158;  p.  9. 
Lewis  v.  Brown,  41  Me.  448,  p.  4. 
Lincoln  v.  Battelle,6  Wend.  475,  p.  123. 
Lincoln  v.  Inhabitants  of  Barre,5  Gush.. 

591,  pp.  23, 27,  158. 

Lincoln  v.  Saratoga,  etc.  R.  R.   Co.,  23 

Wend.  425,  pp.  8,  209,  211. 
Lincoln  v.  Taunton  Manufacturidg  Co.,. 

9  Allen,  IS'.',  pp.50,  115. 
Lindsay  v.  People,  63  N.  Y.  143  p.  82. 
Line  v.  Mack,  14  Ind.  330,  p.  123. 
Linn  v.  Sigsbee,  67  111.  75,  pp.  7,  13. 
Lipscombe    v.  Holmes,    2    Camp.    441, 

p.  224. 

Linton  v.  Hurley,  14  Gray,  191,  p.  79. 
Linz  v.  Mass.  Mutual  Life  Ins.  Co.,  8  Mo. 

App.  369,  p.  74. 

Little  v.  Beazley,  2  Ala.  70.",,  p.  193. 
Littleda  e  v.  Dixon,  1  Bos.  &  Pul.  151,  p. 

151. 
Livingston  v.  Commonwealth,  14  Gratt. 

592,  pp.  34,  68,  77. 

Llussrnan  v.  Merkel,  3  Bos.  402,  p.  222. 
Llussmau    v.    Maryland     Ins.    Co.,     6- 

Cranch,  274,  p.  124. 
Lock  hart   v.  De    Wees,  1  Texas,  535,  p. 

169. 

Lodge  v.  Pipher,  11  S.  &  R.  334,  p.  193. 
Lonurgun    v.   Royal    Exchange    Assu- 
rance, 7  Bing  725,  p.  262. 
Lord  v.  Beard,  79  N.  C.  5,  p.  88. 
Low  v.  Connecticut,  etc.  R.  ti.  Co.,  45  X. 

H.  370,  p.  209. 
Loyd  v.  Hannibal,  etc.  R.  R.  Co.,  53  Mo. 

509,  p.  108. 
Luce  v.  Dorchester  Ins.  Co.,  105  Mass. 

297,  pp.  149, 151. 
Lnning  v.  State,  1  Chandler,  178,  pp.  38, 

242. 

Lus .!  v.  Jones,  39  N.  J.  Law,  708,  p.  221. 
Lush  v.  Druse,  4  Wend.  317,  p.  233. 
Lush  v.  McDuniel,  13  Ired.  485,  pp.   79, 

80. 
Lyon  v.  Lyman,  9  Conn.  59,  pp.  179, 1%. 

31. 

Macer  v.  Third  Ave.  R.  R.  Co.,47N.  Y. 

Sup.  Ct.  461,  p.  82. 
Machin  v.  Grindon,  2  Cas.  Temp.  Leg. 

335, p.  189. 
Macomber  v.  Scott,  10  Kan.  339,  pp.  180, 

195. 
Maddox  v.  Fisher,  14  Moore  P.  C.  103,  p. 

1)9. 
Maguire  v.  Labeaume,7  Mo.  App.  185,  p. 

220. 
Malcomson  v.  Morton,  11  Irish  Law,  230, 

p.  168. 

Male  v.  Roberts,  3  Esp.  163,  p.  121. 
Mauke  v.  People,  24  Hun, 416;  s.  c.,  78N. 

Y.  611,  pp.  16, 18. 
Marcy  v.  Barnes,  16  Gray,  161,  pp.  24, 

202. 
Marcy  v.  Sun  Ins.  Co.,  11  La.  Ann.  748,  p. 

145. 
Marshall  v.  Columbian  Mut.   Ins.  Co.,  7 

Foster  157,  pp.  9,  209. 
Marshall  v.  Union  Ins.  Co.,  2  Wash.  C.  C. 

357,  p.  151. 
Martin   v.  Maguire,  7  Gray,  177,  pp.  196, 

198. 

Martiu  v.  Wallis,  11  Mass.  ."09,  p.  196. 
Mast-heck    v.    St.    Louis     K.     K.  Co.,  1 

Mo.  A  pp.  600,  p.  5. 
Mask  v.  City  of  Buffalo,  N.  Y.  Ct.  of  App. 

1881,  13  Importer,  251.  p.  253. 
Masoti  v.  Fuller,  45  Vt.  29,  p.  96. 


TABLE  OF  CASES  CITED. 


Mason,  etc.  R.  R.  Co.  v.  Johnson,  38  Ga. 

409,  p.  147. 

Mason  v.  Wash,  Breese,  39,  p.  12. 
Massachusetts  Life  Ins.  Co.  v.  Erhel- 

nian,  30  Ohio  St.  647,  p.  5. 
Masters  v.  Masters,  I  P.  Win.  425,  p.  184. 
Matter  of  Alfred  Foster's  Will,  34  Mich. 

21,  pp.  195,  201. 
Mattf  r  of  Robert's  Will,  8  Paige,  446,  p. 

126. 
Matteson  v.  X.  Y.  etc.  R.  R.  Co.,  62  Barb. 

364, p.  79. 
Matteson  v.  X.  Y.  etc.  R.  R.  Co,  35  X.  Y. 

487,  p.  97. 

May  v.  Bradlee,  127  Mass.  414,  p.  47. 
May  v.  Doisett,  :,0  Ga  116,  p.  205. 
Mayor,  etc.   \.   O'Xeill,  1  Penn.  St.  342, 

p.  170. 

McAdory  v.  State,  59  Ala.  !>2,  p.  5. 
McAlister  v.  McAlister,  7  B.  Monr.270,  p. 

193. 

McAllister  v.  State,  17  Ala.  434,  p.  88. 
McClackcy  v.  State,  5  Tex.  Ct.  App.  320, 

pp.  91,  S'3. 

McClintock  v.  Card,  32  Mo.  411,  p.  47. 
McCnrmick  v.  Hamilton,  23  Gratt.  561,  p. 

McCra'ckcn  v.  West,  17  Ohio,  16,  p.  178. 
McCraney   v.  Alden,46  Barb.  274,  p.  121. 
MeDeed  v.  MeDeed,  67  111.  545,  p.  123. 
McDougald   v.  McLean,  1   Winston,  120, 

p.  91. 
McEwen  v.  Bigelow,  40  Mich.  217,  pp.  23, 

26. 

McGill  v.  Rowaiul,  3  Penn.  St.  452,  p.  213. 
McKee  v.  Xe  son,  4  Cowen,  355,  p.  6. 
McKeone.  v.   Barnes,  103  Mass.  344,  pp. 

185,  198. 
McKnight  v.  State,  6  Tex.  Ct.  App.  162, 

p.  4 

McLean  v.  State,  16  Ala.  672.  pp.  53,  8R. 
McLeod  v.  Billiard,  84  X.  Y.  5i5,  p.  196. 
McMahon  v.  Tvng,  14  Allen,  167.  p.  163. 
McMechen  v.  McMechen,  17  W.  Va.  683, 

pp.  38,  43. 
McXair  v.  Xational  L'.fe  Ins.  Co.,  20  X.  Y. 

Sup.  Ct.  146,  p.  78. 
McXeill  v.  Arnold,  17  Ark.   154,  pp.  123, 

135. 

McRae  v  Mat  toon,  13  Pick.  53,  p.  123. 
Mead  v.  North  Western  Ins.  Co.,  3  Sel- 

den,  530,  p.  162. 

Melv  in  v.  Easley,  1  Jones  Law,  388,  p.  241. 
Mendum  v.  Commonwealth,  6  Rand.  704, 

pp.  26,  85. 

Merkle  v.  State,  37  Ala.  139,  p.  237. 
Merriam  v.  Middlesex  Ins.  Co.,  21  Pick. 

162,  p.  149. 
Merrill  v.  Dawson,  Ilempstead,  563,  p. 

120. 

Men-itt  v.  Merritt,  20  111.  65,  p.  123. 
Merritt  v.  Seaman,  6  X.  Y.  168,  p.  4. 
Mertz  v.   Detweiler,  8  W.   &  S.  376,  pp. 
'      97, 9.-*. 
Messer  v.  Reginnitter,  82  Iowa,  312,  p. 

M'Fadden    v.  Murdock,  1    Irish    R.  211, 
Middlebury  Coll.  v.  Cheney,  1  Vt.  348,  p. 

Middleton  v.  Jaiiverson,  2  Hag.  Cons.  R. 

437,  p.  131. 

Miles  v.  Loomis,  17  Hun.  372,  p.  182. 
Miles  v.  Loomis,  ",5  X.  Y.  287.  p.  180. 
Millar  v.  Heinrick,  4  Camp.  155,  p.  127. 
Miller  v.  Eichoitz,  5  Col.  243,  p.  195. 
Miller  v.  Johnson,  27  Md.  S6,  pp.  193,  2<U. 
Miller  v.  Jones,  32  Ark.  337,  p.  iHS. 
Miller  v.  Smith.  112  Mass.  410,  pp.  34.  217. 
Miller  v.  Stevens,  10'J  Mass.  518,  p.  167. 


Milton  v.  Rowland,  11  Ala.  732,  p.  81. 
Milwaukee,    etc.    R.  R.    Co.    v.   Eble,  4 

Chand.  72,  p.  229. 
Milwaukee,  etc.  R.  R.  Co.  v.  Kellogg,  94 

U.  S.  469,  pp.  9,  17. 
Minis  v.  Swartz,  37  Tex.  13,  p.  120. 
M'Lanahan  v.  Universal  Ins.  Co.,  1  Pe- 
ters, 170,  pp.  145,  151. 
Minnesota  Central  R.  R.  Co.  v.  Morgan, 

52  Barb.  217,  p.  169. 
Mish  v.  Wood,  34  Penn.   St.  451,  pp.  8> 

213. 
Mississippi   River  Bridge  Co.  v.  Ring, 

58  Mo.  492,  p.  212. 

Mitchell  v.  Allison,  29  Ind.  43,  p.  211. 
Mitchell  v.  State,  58  Ala.  418,  pp.  78,  109. 
Mobile  R.  R.  Co.  v.  Blakeley,  59  Allen, 

471,  p.  147. 
Mobile  R.  R.  Co.  v.  Whitney,  39  Ala.  468, 

p.  121. 

Mock  v.  Kelley,  3  Ala.  387,  p.  224. 
Molina  v.  United  States,  6  Ct.  of  Claims, 

269,  p.  138. 

Monroe  v.  Douglass,  5  X.  Y.  447,  p.  121. 
Monroe  v.  Lattin,  25  Kan.  1551,  p.  8. 
Monghon  v.  The  State,  57    Ga.   102,  p. 

158. 
Montgomery  v.  Deeley,  3  Wis.  709,  p. 

Montgomery  v.  Gilmer,  33  Ala.  116,  p. 

162. 
Montgomery  v.  Town  of  Scott,  34  Wis. 

338,  pp.  4",  18, 8'.'. 
Moody  v.  Rowell,  17  Pick.  490,  pp.  179, 

Mooney  v.  Lloyd,  5  S.  &  R.  416,  p.  224. 
Moore  v.  Guyner,  5  Me.  187,  p.  139. 
Moore  v.   Lea's  Aduir.,  32  Ala.  375,  p. 

164. 

Moore  v.  State,  17  Ohio  St.  521,  pp.  39,  79. 
Moore  v.  Westervelt,  9  Bos.  559,  p.  143. 
Moore  v.  United  States,  91  U.  S.  270,  pp. 

193,  114. 
Morehouse  v.  Mathews,  2  X.   Y.  514,  p. 

212. 
Morclaml  v.  Mitchell  Co.,  40  Iowa,  401, 

pp.  155,  173. 
More  wood  v.  Wood,  14  East,  327,  note  a, 

p.  18'.). 

Morris  v.  Davidson,  49  Ga.  "61,  p.  120.  - 
Morrissey  v.  Ingham,  M  Mass.  63,  p.  79. 
Monissev  v.  Wiggins  Fen  v  Co.,  47  Mo. 

521,  p.  122. 

Morse  v.  Crawford,  17  Vt.  499,  p.  91. 
Morse  v.  State,  6  Conn.  9,  p.  6. 
Moses  v.  Delaware  Ins.  Co.,  1  Wash.  C. 

(.'.  385,  p.  151. 

Mostyn  v.  Farrigas,  Cowper,  174,  p.  121. 
Mott  v.  Hudson  River  R.  R.  Co.,  8  Bos. 

345,  p.  146. 
Moulton  v.  McOwen,  103  Ma-s.  587,  p.  161. 


Moulton  v.  Scrutin, 
Mo  wry  v.  Chase,  IOC 


39  Me.  288.  p. 


100  Muss.  79,  p.  139. 
Moye'v.   Herndon,  30  Miss.  118,  pp.  184, 

268. 
Muhlowney  v.  Illinois  Cent.  R.  R.  Co., 

36  Iowa',  472,  pp.  11,14,37. 
Mukiovvney    v.    111.  Cent.  R.   R.  Co.  39 

Iowa,  Oi5,  pp.  11,40. 
Mulry   v.  Mohawk  Ins.  Co.,5  Gray,  545, 

pp.  149,  151. 

Munshower  v.  State,  55  Md.  11,  p.  236. 
Murphy  v.  Hagerinan,  Wright,  293,  p.  179. 
Murphy  v.  Xew   York,  etc.  R.  U.  Co. ,66 

Barb.  125,  p.  148. 
Mutual  Beiiclit  Lite  Ins.  Co.  v.  Brown, 30 

X.  J.  Eq.  193,  p.  263. 
Mutual  Lite  Ins.  Co.  v.  Bratt,  55  Md.  iOO, 

p.  240. 
Myers  v.  Murphy,  60  Ind.  282,  p.  172. 


- 


TABLE  OF  CASES  CITED. 


Napier  v.  Ferguson,  2  P.  &  B.  (N.  B.)  415, 

pp.  79,  !)6. 
Nashville,  etc.  R.  R.  Co.  v.  Carroll,  53 

Teiin.  347,  p.  13. 
Naughton  v.  Stagg.  4  Mo.  App.  271,  pp. 

13,  215. 

Nave  y.  Tucker,  70  Ind.  15,  p.  40. 
Nave's  Admr.  v.  Williams,  2i  Ind.  368,  p. 

170. 

Needham  v.  Ide,  5  Pick.  510,  p.  90. 
Nelson  v.  Bridport.8  Beav.  527,  pp.  121, 

138. 

Nelson  v.  Johnson,  18  Ind.  329,  p.  184. 
Nelson  v.  Sun  Mut.  Ins.  Co.,  71  N.  Y.  453, 

pp.  2,  2:5,  167. 

Nelson  v.  Wood,  62  Ala.  175,  p.  174. 
Newell  v.  Newell,  9  Paige  26,  pp.  100, 101, 

102, 135. 

Newell  v.  Newell,  9  Miss.  58,  p.  139. 
Newton  v.  Cocke,  10  Ark.  169,  p.  121. 
New-mark  v.  Liverpool,  etc.  Ins.  Co.,  30 

Mo.  165,  p.  8. 
New  Albany,  etc.  R.  R.  Co.  v.  Huff,  10 

Ind.  315/p.  4. 
New    England   Glass   Co.   v.    Lovell,  7 

Gush.  319,  pp.  9,  IS,  142. 
New  Orleans,  etc.  R.  II.  Co.  v.  Albreton, 

38  Miss.  242,  p.  222. 
Niagara  Ins.  Co.  v.  Greene,  77  Ind.  5!>5, 

p.  153. 

Nichols  v.  Gould,  2  Vesey,  423,  p.  231. 
Noblesville.  etc.  R.  R.  Co.  v.  Gause,  76 

Ind.  142,  p.  8-2. 

Noonaii  v.  lisley,  22  Wis.  27,  p.  2*2. 
Nooivaii  v.  State.  14  Reporter,  320,  p.  95. 
Norton  v..  Moore,  40  Tenn.  483,  p.  81. 
Norton  v.  Seton,  3  Phillemore,  147,  pp. 

100,  103. 
Norman  v.  Morell,  4  VeseyCh.  768,  pp. 

178,  184. 
Norman  v.   Wells,  17  Wend.  136,  pp.  8, 

211. 
Norment  v.  Fastnaght,  1  McArthur,  515, 

p.  158. 
Norwood  v.  Morrow,  4  Dev.  &  Batt.  442, 

p.  88. 
Nowell  v.  Wright,  3  Allen,  166,  p.  175. 


O'Brien  v.  People,  36  N.  Y.  276,  p.  94. 
Ogdeu  v.  Parsons,  -23  How.  167,  p.  143. 
Ohio,  etc.  1*.  R.  Co.  v.  Nickless,  71  Ind. 

271,  p.  211. 

Oleson  v.  Tolford,  37  Wis.  327,  p.  18. 
O'Mara  v.  Oonimomveaith,  75  Penn.  St. 

424,  p.  96. 

Ordway  v.  Haynes,  50  X.  II.  159,  p.  243. 
Onnsby  v.  Iinlisen,  34  Penn.  St.  462,  p. 

157. 

Orr  v.  Mayor,  etc.,  64  Barb.  106,  p.  217. 
Otey  v.  Hoyt,  2  Jones  Law,  70,  p.  188. 
Ott  v.  Soulard,  »  Mo.  58,  p.  120. 
Ottawa  Gaslight  Co.  v.  Graham,  35  111. 

346,  p.  212. 
Ottawa    University    v.    Parkinson,    14 

Kans.  159,  pp.  222,  223. 
Owen  v.  Boyle,  15  Me.  147,  pp.  121.  123. 
Owings  v.  Hull,  9  letters,  607,  p.  121. 


P.  &  L.  3  Prob.  IMv.  (L.  R.)  73,  p.  105. 
Paddock   v.    Common  wealth,   Ins.  Co. 

lOt  Mass.  52,  p.  143. 
Pag«  v.  Ilomans,  14  M<-.  478,  p.  19(i. 
Pago  v.  Parker,  40  N.  H.  59,  pp.  s,  174. 


Page  v.  State,  61  Ala.  16,  pp.  39,  81,  82. 
Paige  v.  Hazard,  5  Hill,  604,  pp.  7,  144, 

210. 
Paine  v.  Schenectady  Ins.  Co.,  11  R.  I. 

411,  p.  122. 

Papin  v.  Ryan,  32  Mo.  21,  p.  120. 
Parker  v.  Boston,  etc.  (steamboat  Co., 

109  Mass.  449,  p.  80. 
Parker's    Heirs   v.  Parker's  Adrar.,  33 

Ala.  459,  p.  226. 
Parnell  v.  Commonwealth,  86  Penn.  5>t. 

260,  pp.  58,  269. 
Parkinson  v.  Atkinson,  31  L.  J.  (N.  S.)  C. 

P.  199,  p.  262. 
Parsons  v.  Munuf.  Ins.  Co.,  16  Gray,  463, 

]).  142. 

Partridge  v.  Ins.  Co.,  15  Wall.  375,  p.  168. 
Patc-hin  v.  Astor  Mutual  Ins.  Co.,  13  N. 

Y.  268,  p.  J42. 
Patterson    v.  Colebrook,  9    Foster,  94, 

p.  4. 

Pate  v.  People,  3  GiIra.,6U,  p.  179. 
Patten  v.  United  States,  15  Ct.  oi  Cl.  2S3. 

p.  210. 
Pavey  v.  Pavey,  SO  Ohio  St.  600,  pp.  196, 

Payson  v.  Everett,  12  Minn,  216,  p.  205. 
Peck  v.  Hibbard,  26  V  t.  698,  pp.  123,  132. 
Pelamourges  v.  Clark,  9  Iowa,  1,  pp.  6,  8, 

Pennsylvania  Coal  Co.  v.  Conlan,  101  111. 

93,  pp.  13,  148. 
Pennsylvania  R.  R    Co.  v.  Bunnell,  81 

Penn.  St.  426,  p.  228. 
Pennsylvania  R.  R.   Co.  v.  Henderson, 

51  Penn.  St.  320,  p.  232. 
Pennsylvania  R.  K.  Co.  v.  Hottenstine, 

47  Penn.  St.  30,  p.  212. 
People  v.  Badger,  1  Wheeler  Cr.  Cas. 

543,  p.  SOo.. 

People  v.  Boscovitch,  20  Cal.  4::6.  p.  53. 
People  V.  Hrotherton,  47  Cal.  *95,  p.  188. 
People  v.  Clark,  33  Mich.  112,  p.  96. 
People  v.  Cheekee,  14  Rep.  582,  p.  236. 
People  v.  Donovan,  43  Cal.  162,  p.  51. 
People  v.  Eastwood,  14  N.  Y.  562,  p.  5. 
People  v.  Finley,  38  Mich.  482,  p.  91. 
People  v.  Ganzaloz,  35  N.  Y.  49,  p.  114. 
People  v.  Greeiilield,  30  N.  Y.    Sup.  Ct. 

462,  p.  113. 

People  v.  Greenfield,  85  N.  Y.  471,  p.  113. 
People  v.  Hewitt,  2  Parker  Cr.  Cas.  20, 

pp.  179,  182. 

People  v.  Lake,  12  N.  Y.  358,  p.  94. 
People  v.  Lambert,  5  Mich.  349,  p.  123. 
People  v.  McCann,  3  Parker  Cr.  Cas.  272, 

p.  88. 

People  v.  McCoy,  45  How.  Pr.  216,  p.  106. 
People  v.  Montgomery,  13  Abb.  Pr.  (N. 


Peo 


S.)  207,  pp.  88,  254. 
ple  v.  Mor 
172,  266. 


, 
rigan,  29  Mich.  1,  pp.  15, 


People  v.  Olmstead,  30  Mich.  434,  p.  81. 
People  v.  Robinson,  2  Parker's  Cr.  Cas. 

236,  pp.  79,  109. 

People  v.  Sanford,  43  Cal.  29,  p.  91. 
People  v.  Stout,  3  Parker's  Cr.  Cas.  670, 

pp.  71,  73. 
People  v.  Thurston,  2  Parker's  Cr.  Cas. 

49,  p.  34,  41. 
People  v.  Wheeler,  9Pac.Coast  L.  J.  584, 

235,  243. 
People  v.  \Vreden  (Sup.  Ct.  Cal.),  12  Re- 

porter, 682,  p.  92. 
Perkins  v.  Augusta,  etc.  Banking  Co.,  10 

Gray,  312,  p.  13. 
Peters  v.  Stavely,  15  L.  J.  (N.  S.)  151,  p. 

168. 
I'etterboruugh  v.  Jaffrey,  6  N.  H.  462,  p. 

20'J. 
Phillips  v.  Gregg,  10  Watts,  15S,  p.  134. 


TABLE  OF  CASES  CITED. 


Phillips  v.  Starr,  26  Iowa,  351.  p.  37. 
Phillips  v.  Terry.  3  Abb.  N.  Y.  Decis.  607, 

p.  154. 

Pickard  v.  Bailey,  0  Foster,  160,  p.  134. 
Pidcoc-k  v.  Potter,  08  Penn.  St.  342,  pp. 

44,  70,  79,91. 

Pierson  v.  Baird,  2  G.  Greone,  235,  p.  120. 
Pierson  v.  People,  7'.»  N".  Y.  434,  p.  73. 
Piersou  v.  People,  25  X.  Y.  Sup.  Ct.  230, 

p.  73. 

Pierson  v.  Wallace,  7  Ark.  2'<2.  p.  211. 
Piersou  v.  Houg,  47  Barb.  243,  p.  117. 
Pigg  v.  State,  43  Tex.  110.  p.  8(i. 
Pinney's  Will,  27  Miss.  2s<),  p.  92. 
Pimiey  v.  Caliill,  12  X.  \V.  Uepurter,  *»2, 

pp.  117,240.244. 

Pitts  v.  State,  43  .Miss.  472,  pp.  78,  79,  260. 
Pittsburgh,  e  c.    It.   It.  Co.   v.  Rose,  74 

Penn  St.  308,  p.  213. 
Pleasant  v.  State,  15  Ark.  624,  p.  5:'.. 
Plunket  v.  Bowman,  2  MoCord,  139,   p. 

177. 

Polhemnsv.  Heinman,  50  Gal.  433,  p.  168. 
Polk  v.  Gollin,  II  Cal.  5(i,  p.  155. 
Polk  v.  State,  3(5  Ark.  117,  pp.  3,  4,  69,  78, 

79, 109. 
Pollard  v.  Wybourn,  1  Hagg.  lice.  725,  p. 

103. 

Pollen  v.  Le  Uoy,  10  Bosw.  38,  p.  166. 
Poole  v.  Richardson,  3  Mass.  330,  p.  90. 
Pope  v.  Filley,  9  Fed.  Rep.  (55,  pp.  28,  10-!, 

170. 
Potts  v.  Aechtemacht,  93  Penn.  St.  142, 

pp.  215,  227. 

Potts  v.  House,  6  Ga.  324,  pp.  80,  90. 
Poureelly  v.  Lewis,    S  Mo,  App.  593,  p. 

195. 

Prather  v.  Rose,  17  Ind.  495,  p.  186. 
Pratt  v.  Rawson,  40  Vt.  183,  pp.  58,  i;3.  203. 
Price  v.  Hartshorn,  44  X.  Y.  94,  p.  14J. 
Price  v.  Powell, 3  X.  Y.  322,  pp.  45,  145. 
Printz  v.  People.  42  Mich.  144,  p.  213. 
Public  Schools  v.  Kish-y's  Heirs,  40  Mo. 

356,  p.  158. 

Pullman  v.  Corning,  9  N.  Y.  93,  p.  45. 
Puryear  v.  Reese,  46  Tunn.  21,  pp.  86,  91. 


Quaife  v.  Chicago,  etc.  It  11.  Co..  43  Mo. 

513,  p.  76. 
Queen  v.  Sheperd,  1  Cox  Cr.  Cas.  237,  p. 

Quinn  v.  Xat.  etc.,  Ins.  Co.,  1  Jones  & 

Carey,  316,  p.  151. 
Quinsigimond  Bank  v.  Hobbs,  11  Gray, 

250,  pp.  24,  183. 

II. 

Railroad  Co.  v.  Frazier,  27  Kans.  463,  p. 

271. 

Raisin  v.  Clark,  41  Md.  158,  p.  160. 
Ramagge  v.  Ryan,  9  Ring.  ;i33,  p.  19. 
Rambler  v.  Tyron,  7  S.  &  R.  90,  pp.  90, 

91. 
Randolph  v.  Adams,  2    W.    Va.    519,  p. 

153. 

Randolph  v.  Holden,44  Iowa,  327,  p.  169. 
Randall  v.  Roteh,  12  Pick.  107,  p.  163. 
Rape  v.  IIeuton,9  Wis.  328,  p.  122. 
Rash  v.  State,  61  Ala.  90,  p.  85. 
Rawls  v.  Arn.  Mutual  Lile  Ins.  Co.,  27  X. 

Y.  282,  p.  152. 

Rawles  v.  James,  49  Ala.  183. 
Raynham  v.  Canton,  3  Pick.  29,  pp.123, 

132. 
Read  v.  Barker,  30  X.  J.  Law,  378;  s.  c., 

32  Id.  477,  p.  155. 


Reading  v.  Menhain,  1  Moo.  &  R.  234,  p. 

Real  v'.  People,  42  X.  Y.  232,  p.  94. 
Reamer  v.  Xesmith,  34  Cu.  27,  p.  ,66. 
Reed  v.  Dick,  8  Watts,  479,  p.  142". 
Reed  v.  Richardson,  OS  Mass.  216,  p.  169. 
Reed  v.Timmins,  52  Tex.  84,  p.  6. 
Reese  v.  Reese,  9J  Penn.  St.  39,  pp.  181, 

198. 

Regina  v.  Dent,  1  Clark,  %,  p.  136. 
Regina  v.  Neville,  Crawf.    A   Dix,  Ab. 

Xot.  Cas.  96,  p.  92. 

Regina  v.  Newman,  3  C.  &  K.  260,  p.  53. 
Regina  v.  Oxford,  9  C.  &  P.  525,  p.  92. 
Regina  v.  Still,  30  Upper  Canada,  C.  P. 

:;0,  p.  95. 
Regina  v.  Thomas,  13  Cox's  Cr.  Cas.  77, 

p.  237. 
Retina  v.  Williams,  8  C.  &  P.  34,  pp.  178, 

183. 
Reid  v.  Piedmont,  etc.  Life  Ins.  Co.,  53 

Mo.  426,  p.  48. 
Reilly  v.  Rivett,  1  Cases  in  Eng.  Eccles. 

Cts.  43,  note  a.,  pp.  182, 189. 
Revett  v.  Brabant,  4  Term,  49,  p.  179. 
Rex  v.  Cator,  4  Esp.  127,  p.  132. 
Reynolds    v.    Jourdain,  5    Cal.    103,   p. 

166. 
Reynolds  v.  Lounsbury,  6  Hill,  553,  p. 

Reynolds  v.  Robinson,  64  X.  Y.  589,  pp. 

37,  225. 
Rice's    Succession,    21    Jya.   Ann.  614,  p. 

120. 

Rich  v.Jones, 9  Cush.  337,  p.  34. 
Itichards  v.  Doe,  100 Mass.  524,  p.  174. 
Bichards  v.  Murdock,  10  B.  &  C.  527,  p. 

151. 
Richardson  v.  McGoldrick,  43  Mich.  476, 

p.  213. 
Richardson  v.  Xewcomb,  21  Pick,  315  p. 

196. 
Klpple  v.  Ripple,  1  Rawle,  386,  pp.  122, 

Ritter  v.  Daniels,  47  Mich.  617,  p.  227. 
Roberts  v.    Commissioners    ot    Brown 

County,  21  Kans.  248,  pp.  8,  212. 
Roberts  v.  Johnson,  58  N.  Y.  613,  pp.  26, 

Robertson  v.  Knapp,  35  X.  Y.  91,  p.  228, 
Robertson  v.  Stark,  15  X".  H.  109    pp.  8 

20.). 

Robinson  v.  Adams,  62  Me.  363,  p.  90. 
Robinson  v  Clifford,  2   Wash.  C.  C.  2  p 

123. 
Robinson  v.  Fitchburg,  etc.  R.  R.  Co.,  7 

Gray,  92,  p.  4. 
Robinson  v.  X.  Y.  Cent.  R.  R.  Co.,  Alb. 

Law  J.,  1881,  357,  p.  250. 
Rochester,  etc.  R.  R.  Co.  v.  Budlong,  10 

How  Pr.  289,  pp.  9,  11,  12,  212. 
Rochester  v.  Chester,  3  X.  H.  364,  pp.  1, 4, 

209. 

Rodgers  v.  Kline,  56  Miss.  818,  p.  166. 
Roe  v.  Roe,  40  X.  Y.  Sup.  Ct.  1,  p.  ISO. 
Roe  v.  Taylor,  45  III.  4s6,  p.  91. 
Rogers  v.  Bitter.  12  Wall.  317,  p.  196. 
Roots  v.  Merriwether,8  Bush.  401,  p.  123. 
Rouse  v.  Morris,  17  S.  &  R.  328,  p.  224. 
Rowe  v.  Rawlings,  7  East,  232,  note  a,  p. 

189. 
Rowell  v.  City  of  Lowell.  11  Gray,  420,  p. 

82. 
Rowley  v.  London,  etc.  R.  R.  Co,  3  Exch. 

221,  p.  231. 

Rowland  v.  Fowler,  47  Conn.  348,  p.  15. 
Rowt,  Admr.,  v.   Kile's  Admr.,  I  Leigh 

216,  p.  193. 

Rumsey  v.  People,  19  X.  Y.  41,  p.  97. 
Runyan  v.  Price,  15  Ohio  St.  14,  p.  03. 
Rush  v.  Mi-gee,  36  Ind.  60,  pp.  37,  91. 


TABLE  OF  CASES  CITED. 


Russell  v.  Horn  Pond,  etc.  Co.,  4  Gray, 

607,  p.  22i». 

Russell  v.  .State,  53  Miss.  367,  p.  70. 
lluthtrlord  v.  Morris,  77  111.  397,  p.  270. 


S. v.   A. ,3  Prob.  Div.  (L.  R.) 

72,  p.  103. 

Sackett  v.  Sackett,  8  Pick.  359,  p.  120. 
Salvin  v.  Norm  Brancepeth  Coal  Co.,  9 

Cli.  App.  70),  p.  115. 
Salvo  v.  Duncan,  49  \\  is.  157,  p.  164. 
Sanchez  v.  People,  22  X.  Y.  147,  p.  89. 
Sanderson  v.  Nashua,  44  N.  H.  492,  pp. 

51,  79. 
.Siph  v.  Atkinson,  2  Eng.  Ecc.  R.  64,  p. 

189. 

Sari  v.  Arnold,  7  R.  I.  586,  pp.  24,  50. 
Sartoi  ious  v.  Slate,  24  .Miss.  <;o->.  p.  53. 
Sasser  v.  State,  13  Ohio,  453,  p.  205. 
Sauter  v.  X.  Y.  Cent.  R.  R.   Co.,  1.!  X.  Y. 

Sup.  Ct.  451,  p.  236. 
Savings  Bank  v.  Ward,  103  U.  S.  195,  p. 

168. 

Scattei  good  v.  Wood,  79  X.  Y.  263,  p.  160. 
Schell  v.  Plumb,  55  N  Y'.  598,  p.  236. 
Sebenok  v.  Mercer  Co.Mut.  Ins.  Co. ,24  X. 

J  L.  451,  p.  152. 
Schermeihom  v.  Tyler,  11  Hun,  551,  p. 

210. 

Schlenker  v.  State,  9  Xeb.  250,  p.  85. 
Schmidt  v.  Herfurth.o  Robertson,  124,  p. 

233. 
Schoup  v.   Schenck,  40  X.  J.   L.  195,  p. 

Sellout  v.  Peoria,  etc.  Ins.  Co.  41  111.  296, 

p.  150. 
Schioeuer  v.  The  C.  R.  I.  &  P.  R.  Co.,  47 

Iowa,  375,  pp.  103,  107. 
Schultz  v.  Lindell,  30  Mo.  310,  p.  158. 
Schnylkill  Navigation  Co.  v.  Thoburn, 

7  S.  &  K.  411,  p.  2  2. 
Scraggs  v.  The  Baltm.,  etc.  R.  R.  Co.,  10 

Md.  2i>8,  p.  4. 

Scripp.s  v.  Foster,  41  Mich.  742,  p.  74. 
Seaman  v.  Fonerau,  2  Strange,  1183,  p. 

151. 

Seamans  v.  Smith,  46  Barb.  320,  p.  153. 
Seaver  v.  Boston,  etc.  R.  R.  Co.,  14  Gray, 

466,  p.  146. 

Seeley  v.  Brown,  15  X.  J.  1 .  35,  p.  222. 
Seibles  v.  BlackNvell,  1  McM.  57,  p.  4. 
Selle  v.  Isaacson,  1  F.  &  F.  194,  p.  53. 
Semple  v.  Hastar,  27  Cal.  163,  p.  120. 
Sexton  v.  North  Bridgewater,  lit;  Must-. 

201,  p.  2 12. 

Sexton  v.  Lamb,  27  K  ns.  426,  p,  272 
Shaier  v.  Dean's  Adm'r.  29  Iowa,  144, 

pp.  225,  226. 

Shaft er  v.  Evans,  53  Cal.  32,  p.  13. 
Shattuck  v.  Stoneham  Branch  R.  R.  Co., 

6  Allen,  116,  p.  212. 

Shattuck  v.  Train,  11(5  Mass.  296,  p.  226. 
Shaw  v.  City  of  Charleston,  2  Gray,  109, 

pp.  208,  212. 

Shawiieetown  v.  Mason,  82  111.  337,  p.  ?0. 
Shed  v.  Augustine,  14  Kans.  2,N2,  p.  121. 
Sheldon  v.  Benham,4  11111,129,  pp.165, 

108. 
Sheldon  v.  Booth,  50  Iowa,  209,  pp.  ICO, 

219. 

Sheldon  v.  Warner,  45  Mich.  (538,  p.  180. 
Shelton  v.  State,  34  Te.xas,  (!(«;,  p  ',*. 
Siiepard  v.   Ashley.  10  Allen.  542.  '?.  2CO. 
Shepar  I  v.  Pratt,  16  Kans.  v09,  i>.  r>. 
Shriver  v.  Sioux  City,  etc.  R.  R.  Co.,  24 

Minn.  50*5,  p.  174. 

Shnlte  v.  Hennessy,  40  Iowa.  352,  p.  162. 
Sickles  v.  Gould,  5i  How.  Pr.  25,  p.  153. 


Sidwell  v.  Evans,  1  P.  &  W.  (I'enn.)  383, 

p.  139. 
Sikes  v.  Paine,  10  Ircd.  Law,  282.  pp.  23, 

58, 144. 
Silverthorne  v.    Fowle,  4  Jones,  c62,  p. 

166. 
Sims  v.  Maryatt,  17  Q.  B.  (79  E.  C.  L.) 

292,  p.  120. 

Simmons  v.  Carrier,  68  Mo.  416,  p.  220. 
Simmons  v.  Means,  S  S.  A  M.  397,  p.  224. 
Simmons  v.  St.  Paul,  etc.  R.  R.  Co.,  18 

Minn.  184,  pp.  212,  229. 
Simms  v.  Marr>att,  17  Q.  B.  292,  p.  ICO. 
Simonson  v.  C.' H.  1.  &  P.   R.  R.  Co.,  49 

Iowa  87,  p.  231. 

Sinclair  v.  Roush,  14  I  ml.  450,  p.  211. 
Sinnott  v.  Mullins,  »2  Penn.  ht.  342,  p.  CO. 
Sirrine  v.  Briggs,  31  Mich.  44'.,  p.  23'.. 
Sisson  v.  Conger,  IN.  Y.  Sup.  Ct.  569,  p. 

Sissoii'v.  Toledo,  R.  R.  Co.,  14  Mich.  489, 

p.  23.5. 

Sizer  v.  Burt,  4  Denio,  426.  p.  54. 
Slais  v.  Slais,  9  Mo.  App.  96,  p.  269. 
Slater  v.  Wilcox,  57  liarb.  604,  pp.  9,116. 
Siualley  v.  Iowa  Pacilic  R.   R.  Co.,  36 

Iowa,  57 1,  p.  212. 
Smith  v.  Frost,  42  X.  Y.  Sup.  Ct.  87,  p. 

Smith"  v.  Gould,  4  Moore,  P.  C.  21,  p.  121. 
Smith  v.  Gugerty,  4  Barb.  619,  p.  lt>2. 
Smith  V.TallapOfaCo.,*  Woods,  574,  p. 

121. 

Smith  v.  Watson,  14  Vt.  332,  p.  224. 
Smith  v.  Wilcox,  4  Hun.  411,  p.  220. 
Snelling  v.  Hall,  107  Mass.  134,  p.  16S. 
Snow  v.  Boston,  etc.  R.  R.  Co.,  65  Me. 

230,  pp.  3,  9.  212. 
Snowdeii  v.  Idaho  Quartz  Manuf.  Co., 

55  Cal.  450,  pp.  23,  170. 
Snyder  v.  Iowa  City,  40  Iowa,  616,  p.  254. 
Snyder  v.  St  ate,  70  Ind.  349,  pp.  58,  60. 
Snydrr  v.  Western  Union  K.  R.  Co.,  25 

Wis.  60,  pp.  212,  229. 
Sorp  v.  First  German  Congregation,  63 

Penn.  St.  156,  pp.  23,24. 
South,  etc.    R.  R.  Co.  v.  McLendon,63 

Ala.  266,  p.  6. 
South  Western  Freight, etc. Co.  v.  Stan- 

ard,44  Mo.  71,  p.  169. 
Southey  v.  Nash,  7  C.  &  P.  632,  p.  53. 
Sowers  V.  Dukes,  8  Minn.  23,  p.  8. 
Sparrow   v.   Harrison,  3  Curieis,  16,  T>. 

103. 
Spankling  v.  Vincent,  24  Vt.  501,  pp.  123, 

Spear  v.  Bone  (Mss.)  5  A.  &  E.  709,  pp. 

178,  182. 
Spear  v.  Richardson,  34  X.  II.  428,  pp.  6, 

Speiu-  v.  Richardson,  37  X.  H.  23,  pp.  34, 

Speiden  v.   State,  3  Texas  Ct.  of  App. 

159,  p.   79. 

Spiva  v.  Stapleton,  38  Ala.  171,  p.  154. 
Springfield  v.  Worcester,  2  Cush.  52,  p. 

Stacv  v.  Portland  Publishing  Co.,  28  Me. 

279,  p.  5. 
Stambaugl)  v.  Smith,  23  Ohio  St.  584,  p. 

170. 

Stanford  v.  Pruet,  27  Ga.  243,  p.  121. 
stale  v.  Ah  Chnev.  14  Nc;v.  79,  p.  its. 
State  v.  Allen,  1  Hawk's  Law  and  Ecj.,6, 

p.  205. 

Stale  v    Archer,  54  X.  H.  4C5,  p.  SO. 
Stiilc  v.  B:q>tiMe,2(i  La.  Am>.  ].<  ,  p.  78. 
State  v.  Bowman,  7*  X.  <;.  ."0'.',  pp,  78.  JOS. 
suite  v.  Candler,  3  Hav.ks  Law  and  Ey. 

o!'3,  p.  205. 
State  \  .  Curr,  f.  X.  II.  :;<;'.',  y.  2C6. 


TABLE  OF  CASES  CITED. 


State  v.  Cheek,  13  Ired.  114,  p.  206. 
State  v.  Clark,  15  S.  C.  (X.  S.)  40.5,  pp.  2, 

9,68. 
State  v.  Clark,  12  Ired.  (X.  C.)  152,  pp.  9, 

84,  85. 

State  v.  Clinton,  67  Mo.  380,  p.  195. 
State  v.  Cook,  17  Kans.  394,  pp.  10S,  110. 
State  v.  Ctiellar,  47  Tex.  :J04,  p.  134. 
State  v.  Dollar,  66  X.  C.  626,  p.  233. 
State  v.  Felter,  25  Iowa.  67,  pp.  38,  85. 
State  v.  Fitzsimmons,  30  Mo.  2:!6,  p  53. 
State  v.  Folwell,  14  Kans.  105,  pp.  5,  6. 
State  v.  Geddis,  42  Iowa,  268,  p.  90. 
State  v.  Gedicke,  43  X.  J.  Law,  86,  p.  76. 
State  v.  Givens,  5  Ala.  754,  pp.  11JO,   193. 
State  v.  Giass,  5  Oregon,  73,  p.  44. 
State  v.  Graham,  74  X.  C.  646,  p.  105. 
State  v.  Harris,  63  X.  C.  1,  pp.  82,  205. 
State  v.  Harris,  5  Ired.  Law,  287,  p.  205. 
State  v.  Hastings,  53  X.    H.  4<2,  pp.196, 

State 'v.  Hayden,  51  Vt.  296,  pp.  34,  47,  91. 
State  v.  Hiuchuian,  27  Penn.  St.  479,  p. 

123. 
State  v.  Hinkle,  6  Iowa,  159,  pp.  27,  59, 

110. 
State  v.  Hooper,  2  Bailey  Law,  37,  pp. 

50,  205. 

State  v.  Hoyt,  46  Conn.  330,  p.  248. 
State  v.  Huxford,  47  Iowa,  16,  p.  5. 
State  v.  Jacobs,  6  Jones  Law,  284,  p.  170. 
State  v.  Jarrett,  17  Md  80:»,  p.  1*0. 
•State  v.  Jones,  68  X.  C.  443,  pp.  81,  83. 
State  v.  Klinger,  46  Mo.  224.  pp.  4t,  91. 
State  v.  Knapp,  45  X.  II.  148,  pp.  94,  95. 
State  v.  Knight,  43  Me.  1,  pp.  83, 112 
State  v.  Lautenschlager,  22  Minn.  521,  p. 

State" v.  Matthews,  66  X.  C.  113,  pp.  77, 81. 
State  v.  Meillicott,  9  Kans.  289,  p.  34. 
State  v.  Miller,  53  Iowa,  84,  p.  53. 
State  v.  Miller,  47  Wis.  530,  pp.  193, 195. 
State  v.  Morphy,  33  Iowa,  272,  pp.  bl,  84. 
State  v.  Morris,  84  X.  C.  756,  p.  6. 
State  v.  Morris,  47  Conn.  179,  p.  236. 
State  v.  Murphy,  9  Nev.  394,  p,  83. 
State  v.  Xewlin,  69  Ind.  108,  p.  91. 
State  v.  O'Brien,  7  R.  I.  336,  pp.  242,  245. 
State  v.  O'Conner,  13  La.  Ann.  486,  p. 

120. 

State  v.  Owen,  73  Mo.  440,  p.  196. 
State  v.  Powell,  7  X.  J.  Law,  295,  pp.  81, 


State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v. 
State  v, 
State  v. 
State  v. 

199. 

State  v. 
State  v. 
State  v. 
State  v. 
State  v. 

122. 
State  v 

169. 
State  v 

195. 
State  v 

205. 
State 
State 
State 

Stut.'- 


Phair,  48  Vt.  366,  pp.  2, 179. 
Pike,  49  X.  II.  391),  pp.  90,  92. 
Pike,  65  Me.  112,  pp.  20,  78,  84: 
Porter,  34  Iowa,  131,  pp.  21,  81. 
Reddiek,  7  Kans.  143,  p.  70. 
Keitz,  83  X.  C.  634,  p.  6. 
Salge.  2  Nevada,  321,  p.  53. 
Secret,  80  X.  C.  450.  pp.  2.',  26,  58. 
Shinborn,46  X.  H.  497,  pp.  6,  180, 

Slash,  S3  X.  C.  630,  p.  109. 
Smith,  32  Me.  370,  pp.  78,  95. 
Smith, Phillips  Law,  302,  p.  94. 
Stoyell,  70  Me,  360,  p.  81. 
Surtly,  2  Hawk's   (N.  C.)  320,  p 

.  Terrill,  12  Rich.  321,  pp.  29,  79, 
Tompkins,  71  Mo.  616,  pp.  180, 
.  Tutt,  2  Bailey  (S.  C.  Law), 37,  p. 

.  Twitty,  2  Hawks,  248,  p.  122. 

.  Ward',  39  Vt.  225,  pp.  2i,  178,  196. 

.    Wutson,65  Me.  74,  pp.  16,   151, 

2*17. 

.  West,  1  Houston  Cr.  Cas.  94,  p. 


State  v.  Windsor,  5  Harr.  (Del.)  512,  pp. 

State'v.  Wood,  53  X.  H.  484,  pp.  29,  95. 
State  v.  Zellers,  7  X.  J.  Law,  220,  p.  53. 
btaunton  v.  Parker,  26  X.  Y.  Sup.  Ct.  56, 

p.  73. 
Steamboat  v.  Logan,  18  Ohio,  375,  pp. 

143,  144. 
Steam  Packet  Co.  v.  Sickles,  10  How. 

419, p.  218. 
Stearine  v.  Hentzman,  17  C.  B.   (X.  S.) 

56,  p.  165. 

Stephenson  v.  Bannis,  3  Bibb.  369,  p.  121. 
Stewart  v.  Redditt,  3  Md.  67,  p.  92. 
stilling  v.  Town  of  Thorp,  54  Wis.  — ,  p. 

242. 
St.  Louis  Mnt.  Life  Ins.  Co.  v.  Graves,  6 

Bush.  290,  p.  18. 
Stokes  v.  Mackeii,  62  Barb.  145,  pp.  106, 

Stonam  v   Waldo,  17  Mo.  489,  p.  117. 
Stone  v.  Covell,  29  Mich.  362,  p.  229. 
Stone  v.  Hubbard,  7  Gush.  595,  p.  184. 
Siorer's  Will,  28  Minn.  9,  p.  271. 
Storey  v.  Salomon,  6  Daly,  532,  p.  168. 
Story  v.  Maclay,3  Mon.  480,  p.  13. 
Stomlenmeier    v.  Williamson,  29    Ala. 

55>, p.  237. 

Stranger  v.  Searle,  1  Espin.  14,  p.  181. 
Strong  v.  Kean,  13  Irish  Law  K.  V3,  p. 

Strother  v.  Lucas,  6  Peters,  763,  pp.  121, 

190, 193. 

Stuart  v.  State,  57  Tenn.  178,  p.  41. 
Stul'z  v.  Locke,  47  Md.  562.  p.  169. 
Muruis  v.  Kiuipp,  :;:',  Vt.  4,-6,  pp.  12,211. 
Sturm  v.  Williams,  38  X.  Y.  Sup.  Ct.  32.3, 

pp.  166,  221 
Summer  v.  State,  5  Tex.  Ct.  of  App.  374, 

pp.254,  2<50. 
Summers   v.  United    States  Ins.  Co.,  13 

La.  Ann.  504,  p.  151. 
Sussex  Peerage  Case,  11  Cl.  &  F.  85,  pp. 

Sutherland  v.  Hankins,  56  Ind.  343,  p. 

91. 

Sutton  v.  Drake,  5  H.  &  X.  647,  p.  236. 
Swan  v.  Middlesex,  100  Mass.  r,3,  pp.  212, 

214. 

Swan  v.  O'Fallen,  7  Mo.  231,  p.  184. 
Swartout  v.X.  Y'.  Cent.It.lt.  Co.,  14  Hun, 

575.  p.  175. 

Sweet  v.  Shumway,  102  Mass.  365,  p.  167. 
Swetser  v.  Lowell,  33  Me.  446,  pp.  178, 

180, 196. 
Sydleman  v.  Beckwith,  43  Conn.  9,  pp.  5, 

6,  7,  9. 
Syme  v.  Stewart,  17  La.  Ann.  .73,  p.  122. 


T. 


Talbot  v.  Seemnn,  Cranch,  38,  p.  121. 
Tate  v.  M.  K.  &  T.  R.  K.  Co.,  64  Mo.  149,  p. 

229. 

Tatum  v.  Mohr,  21  Ark.  354,  pp.  59,  79. 
Taylor  v.  Cook,  8  Price,  650,  p.  189. 
Taylor  v.  Grand  Trunk  It.  It.  Co.,  48  X. 

H.  304,  p.  71. 

Taylor  v.  Monnot,  4  Duer,  116,  p.  16. 
Taylor  v.  Runyan,  9  Iowa,  522,  p.  121. 
Taylor  v.  Town  of  Monroe,  43  Conn.  36, 

pp,  9,  11,  12,  18. 
Taylor  v.  The  French  Lumbering  Co., 

47  Iowa,  662,  p.  157. 
Taylor's  Will  Case,  10  Abb.  Pr.  (x.  s.)300, 

p.  201. 
Tebbet-tsv.  Ilaskins,  16   Me.  283,  pp.9, 

161,  208. 


Teft  v.  Wile-ox,  6  Kans.  46,  pp.  39.  44. 

li.  10  Him,  357,  p.  61. 


Templeton  v.  People. 


TABLE  OF  CASES  CITED. 


Terpenning  v.  Corn  Exchange  Ins.  Co., 

43  X.  Y.  -279,  pp.  8,  44,  211. 
Terry  v.  McNeil.  58  Barb.  241,  p.  231. 
Terrettv.    Woodiutf,  19   Vt.  183,  pp.  122, 

128. 

Thatcher  v.  Rancher,  2  Col.  698,  p.  213. 
Thayer  v.  Davis,  38  Vt.  16 !,  p.  54. 
Tlmver  v.  Providence  Ins.  Co.,  70  Me. 

539,  p.  151. 
The  Queen  v.  Crouch,  1  Cox  Cr.  Cas.  !4, 

p.  249. 

The  Clfiuent,  2  Cii'tis,  363,  p.  110. 
The  City  of  Washington,  9j  U.  S.  31,  pp. 

144,  16$. 
The  Goods  of  Bonnelli,  1  Prob.  &  Div. 

169,  p.  137. 
The  Goods  of  Dost  AH  Khan,  6  Prob  & 

Div.  6,  p.  i35. 

The  Scotia,  14  \Vall.  171,  p.  120. 
The  Sussex  Peerage  Case,  11  Cl.  &  F.  85, 

pp.  128,  133,  137. 
Thomas  v.  Mallinckrodt,  43  Mo.  65,  pp. 

228,  229. 

Thomas  v.  State,  40  Tex.  36,  pp.  4,91,268. 
Thompson  v.  i^eitrand,  23  Ark.  7^0,  p. 

80. 

Thompson  v.  Bennett,  22  Upper  Can- 
ada (C.  P.),3i'2,  p.  189. 
Thompson  v.  Boyle,  05  Penn.  St.  477,  p. 

Thompson  v.  Dickhart,  66  Barb.  604,  p. 

211. 

Thompson  v.  Riggs,  5  Wall.  663.  p.  168. 
Thompson  v.  Trevauion,  Skinner,  402, 

p.  75, 

Tingley  v.  Cowgill,  48  Mo.  294,  p.  37. 
Tinney  v.  New  Jersey  Steamboat  Co., 

.12  Abbott's  Pr.(x.  S.)  1,  pp.  64,  96. 
Titlow  v.  Titlow,  54  Penn.  St.  216,  p.  t*0. 
Tome  v.  Parkersburgll.  li.  Co.,  39  Md. 

38,  p.  193. 
Townsend  v.  Bruudage,  6  Thomp.,  etc. 

527,  p.  220. 
Townstnd  v.  Pepperell,  99  Mass.  40,  pp. 

89,  90. 

Townsdin  v.  Nutt,  19  Kans.  82,  p.  82. 
Toulandoii  v.  Lacheiiuieyer,  1  Sweeny, 

X.  Y.  45,  p.  123. 
Tracy  Peerage    Case,  10  Cl.  &  F.  154,  p. 

1S4,  267. 
Transportation  Line  v.  Hope,  95  U.  S. 

297,  p.  142. 
Travis  v.  Brown,  43  Penn.  St.  9,  pp.  3, 

193. 

Trelawny  v.  Colman,  2  Starkie,  168,  p.  6. 
Trimbey  v.  Vijjiiier,  1  Bing.  (x.  s.)  158,  p. 

139. 
Tucker  v.  Massachusetts  Cent.  R.R.  Co., 

118  Mass.  546,  p.  23. 

Tucker  v.  Williams,  2  Hilton,  562,  p.  173. 
Tullis  v.  Kidd,  12  Ala.  648,  pp.  23,  26,  49. 
Turner  v.  Cook,  36  Ind.  129,  p.  5. 
Turner  v.  Hand,  3  Wall.,  Jr.  88,  p.  268. 
Turner  v.  lurner,  5  Jur.    (x.  &.)  839,  p. 

Turner  v.  McFee,  61  Ala.  468,  p.  5. 
Turner  v.  The  Black  Warrior,  1  McAlis- 

ter,181,  p.  115. 

Turnbull  v.  Dodds,  6  D.  901,  pp.  178,  267. 
Turnpike  Co.  v.  Baily,  37  Ohio  St.  104,  p. 

Twogood  v.  Hoyt,  42  Mich.  609,  p.  158. 
Twombly  v.  Leach.  11  Cush.  405,  p.  98. 
Tyler  v.  State,  11  Tex.  Ct.  App.  388,  p. 

156. 
Tyler  v.  Todd,  36  Conn.  222,  pp.  22,  196, 

Tyler  v.  Trabue,  8   Moiir.  306,  pp.  122, 

Tyngv.  Fields.   5   N.Y.  Sup.  Ct.  672,  p. 
219. 


U. 

Uhler  v.  Semple,  5  C.  E.  Green,  288,  p. 

122. 
Underwood  v.  Waldron,  33  Mich.  232,  p. 

Union  Pacilic  Railway  Co.  v.  Clopper 

(U.  S.  Sup.  Ct.),p.  i59. 
United  States  v.  Darnaud,  3  Wall.,  Jiv 

J43,  p.  268. 
United  States  v.  De  Coursev,  1  Pinnejv 

508,  p.  120. 
United  States  v.  Howe,  12  Cent.  Law  J. 

193,  p.  258. 
United  States  v.  Jones,  10  Fed.  Rep.  469, 

p.  193. 
United  states  v.  McGlue,  1  Curtis,  1,  pp. 

37,  59,  79. 
United  States  v.  Otega,  4  Wash.  533,  p. 

United  States  v.  Turner,  11  Howard,  663,. 

pp.  120,  121. 
United  States  v.  Wiggins,  14  Peters,  334,. 

p.  121. 


Van  Atta  v.  McKiunev,  16  X.  J.  L.  235,  p. 

222. 
Van  Buskirk  v.  Mulock,  18  X.  J.  Law, 

184,  pp.  122,  132. 
Vauder  Uonckt  v.  Thelusson,  8  Man.  S. 

&  S.  (65  ling.  C.  L.)  812,  pp.  2,  26,  133- 
Vandine  v.  Burpee,  13  Met.  288,  p.  153. 
Van  Deusen  v.  .Newcomer,  40  Mich.  120,. 

p.  48. 

Van  Horn  v.  Keenan,  23  111.  440,  p.  90. 
Van  Huss  v.  Uainbolt,42  Tenn.  139,  p.  90.. 
Van  Wyck  v.  Mclutosli,  14  X.   Y.  439,  p. 

Van  Zandt  v.  Mut.  Benefit  Life  Ins.  Co., 

55  N.  Y.  179,  p.  37. 
Veerhuseu  v.  Chicago,  etc.  R.  R.  Co.,  53 

Wis.  6S9,  p.  13. 
Vinton  v.  Peck,  14  Mich.  287,  p.  195. 

w. 

Waco  Tap  R.  R.  Co.  v.  Shirley,  45  Tex- 

355,  p.  220. 

Wade  v.  Dewitt,  20  Tex.  398,  p.  249. 
Wager  v.  Schuyler,  1  Wend.  553,  pp.  231 

236. 

Wagner  v.  Jacoby,  26  Mo.  530,  pp.  8,  180, 
Walsh  v.  Dart,  12  Wis.  635,  p.  122. 


Walsh  v.  Say  re,  52  How.  Pr.  334,  p.  107. 
Walsh   v.  Washington  Marine  Ins.  Co., 

. 

Ga.  237,  pp.  28,  34 


32  N.  Y.  427,  p.   142. 
elds,  28 


Walker  v.  Fiel 


Walker  v.  Forbes,  31  Ala.  9,  p.  124. 
Walker  v.  Rogers,  24  Md.  237,  p.  39. 
Walker  v.  State,  7  Tex.  Ct.  App.  245,  p. 

105. 

Walker  v.  State,  58  Ala.  3S3,  p-  156. 
Walker  v.  Walker,  14  Ga.  242,  p.  91. 
Wallace  v.  Finch,  24  Mich.  255,  p.  229. 
Wallace  v.  Goodell,  18  X.  H.  43'J,  p.  160. 
Ware  v.  Ware,  8  Me.  42,  p.  239. 
Washburn  v.  Cuddihy,  8  Gray,  430,  p. 

249. 
Washington  v.  Cole,  6   Ala.  212,  pp.  22, 

50,  69. 
Washington  Ice  Co.  v.  Webster,  68  Me. 

449,  p.  2  13. 

Waters  v.  Thorn,  22  Bear.  547,  p.  266. 
NVatson  v.  Gresap,  1  B.  Mour.  196,  p.  206. 
Watson  v.  Pittsburg,  etc.  li.  li.  Co.,  31 

Penn.  St.  469,  p.  212. 


TABLE  OF  CASES  CITED. 


Watei  bury  Brass  Co.  v.  X.  Y.  etc.  Co., 

Fisher's  Pat.  Cas.  43,  p.  16X 
Waters  v.  Waters,  :;:>  Md.  :>.il,  p.  91. 
Weane  v.  K.  &  D.  M.  It.  11.  Co.,  45  Iowa, 

246,  p.  14. 
Weaver  v.  Alabama,  etc.  Co.,  35  Ala.  176, 

pp.  145,  175. 
Webber  v.  Eastern  R.  R.  Co.,  2  Mete.  147, 

p.  230. 

Webb  v.  Page,  1  Car.  &  K.  25,  p.  261. 
Webb  v.  State,  5  Tex.  Ct.  App.  596,  pp. 

Weide  v.'  Welde,  2  Lee,  580,  p.  100. 
Welch  v.  Brooks,  10  Rich.  1-24,  p.  7». 
Wendell  v.  Troy,  159  Barb.  32!»,  p.  97. 
West  Xewbury  v.  Chase,  5  Gray,  421,  p. 

West  v.  State,  22  N.  J.  L.  241.  pp.  190, 193. 
Western  Ins.  Co.  v.  Tobin,32  Ohio  St.  77, 

pp.  13, 142,  143. 
Westlake  v.   St.  Lawrence  Ins.  Co.,  14 

Barb.  206;  g.   c.,3  Bennett  Fire  Ins. 

Cas.  404,  p.  218. 
Wetherbee's  Exr's  v.  Wetherbee's  heirs, 

38  Vt.  454.  p.  75. 

Whelaii  v.  Lynch,  60  X.  Y.  469,  p.  233. 
White  v.  Bailey,  10  Mich.  J55,  pp.  47,  86. 
Wnite  v.  Ballon,  8  Allen,  408,  pp.  13, 16. 
White  v.  Clemens,  :>'.)  Ga.  232,  p.  170. 
White  v.  Graves,  107  Mass.  325,  p.  89. 
White  &  Co.  v.  Sassamaii,  67  Penn.  St. 

415, 

Whitesell  v.  Crane,  8  W.  &  S.  372,  p.  213. 
Whiteley  v.  Inhabitants  of  China,  61  Me. 

199, p.  212. 
Whitney  v.  Chicago  &  N.  W.  R.  R.  Co., 

27  Wis.  327,  p.  170. 
Whitney  v.  City  of  Boston,  98  Mass.  315, 

p.  214. 
Whitney  v.  Thacher,  117  Mass.  526,  p. 

Whitesides  v.  Poole,  9  Rich.  68,  p.  122. 
W  hitmore  v.  Bischoff.  5  Hun.  176,  p.  211. 
Whitmorev.  Bowman,  4  G.  Greene,  148, 

pp.  8,  212. 
Whitman  v.  Boston,  etc.  R.  R.  Co.,  7 

Gray,  313,  p.  229. 
Whitbeck  v.  N.  Y.  etc.  R.  R.  Co.,  36 Barb. 

644, p.  217. 

Whitcomb  v.  State,  41  Tex.  125.  p.  91. 
Whiton  v.  Snyder,  88  N.  Y.  2!>9,  p.  272. 
Whittier  v.  Franklin,  46  X.  H.  23,  p.  6. 
Whitlield  v.  Whitlield,  40  Miss.  352.  p. 

213. 

Whittelsey  v.  Kellogg,  28  Mo.  404,  p.  158. 
Whittakerv.  Parker,  42  Iowa,  586,  p.  63. 
Wiggins  v.  Wallace,  19  Barb.  338,  p.  173. 
Wilcox  v.  Hall,  53  Ga.  635,  p.  115. 
Wile-ox  v.  Leake,  11  La.  Ann.  178,  p.  211. 
Wilkinson  v.  Mosely,  30  Ala.  562,  pp.  77, 

Wilkinson  v.  Pearson,  23  Penn.  St.  117, 

p.  ill. 

Wilder  v.  Decon,  26  Minn.  10,  p.  168. 
Willings  v.  Conseqim,  1  Peters  C.  C.  25, 

p.  123. 

Willis  v.  Quimby,  11  Foster,  489,  p.  117. 
Willey  v.  Portsmouth,  £5  N.  H.  i.03,  pp. 

39,79. 


Williams  v.  Brown,  18  Ohio  St.,  pp.  39, 

40,  222. 

Williams  v.  Lee,  47  Md.  321,  pp.  90,  91. 
Williams  v.   Popple  ton,   3  Oregon,  139, 

pp.  97,  98. 

Williams  v.  State,  61  Ala.  33,  p.  204. 
Williams  v.   Taunton,  125    Mass.  34,  p. 

115. 

Williams  v.  Williams,  3  Beav.  547,  p.  13(5. 
Wilson  v.  Baumaii,  80  111.  49:«,  pp.  162, 

168. 

Wilson  v.  Beauchamp,  50  Miss.  24  p.  196. 
Wilson  v.  SinUh,  13  Tenn.  :i99,  p.  1^5. 
Wilson  v.  State,  i 52  Ala.  2.9,  p.  53. 
Wilson  v.  State,  41  Tex.  320.  p.  97. 
Willson  v.  Belts,  4  Demo,  201,  p.  190. 
Wilt  v.  Vickers,  8  Watts,  227,  pp.  82,  99. 
Winans  v.  X.  Y.  etc.  It.  II.  Co.,  21  How. 

88,  pp.  163,  266. 

Winter  v.  Burt,  31  Ala.  33,  p.  218. 
Wogan  v.  Small,  11  S.  &  ft.  141,  p.  90. 
Wood  v.  Brewer,  57  Ala.  515,  p.  224. 
Wood  v.  Chicago,  ete.  It.  It.  Co.,  40  Wis. 

582,  p.  4. 
Wood  v.  Sawyer,  Phillips  N.  C.  Law,  253, 

pp,  59,  75. 

Woods  v.  Allen,  18  N.  H.  28,  p.  156. 
*>  oodiii  v.  People,  1  Parker  cr.  Cas.  464, 

p.  94. 
Woodbridge  v.  Austin,  2  Tyler,  364,  p. 

123. 

Woodman  v.  Dana,  52  Me,  9,  pp.  23, 196. 
Woodcock  v.  Houldsworth,  16  M.  &  W. 

124, p.  172. 
Woodruff  v.  Imperial  Fire  Ins.  Co.,  83 

X.  Y.  133,  p.  221. 
Woodbury  v.  Obear,  7  Gray,  467,  pp.  39, 

Woodrow  v,  O'Conner,  28  Vt.776,  p.  122. 
Woodward  v.  Bugsbee,  4  N.  Y.  Sup.  Ct. 

393, p.  225. 

Woodward  v.  State,  4  Baxter,  322,  p.  5. 
Wright  v.  Hardy,  22  Wis.  348,  pp.  42,  97. 

98. 
Wright  v.  Williams'  Estate,  47  Vt.  222, 

pp.  25,  268. 

Wyinan  v.  Gould,  47  Me.  159,  p.  90. 
Wyman  v.  Lexington  R.  It.  Co.,  13  Met. 

316,  p.  213. 
Wynne  v.  State,  56  Ga.  113,  p.  173. 


Yates  v.  Waugh,  1  Jones  Law,  483,  p. 

184. 
Yates  v.  Yates,  76  X.  C.  142,  pp.  27,  179, 

196. 

Yoe  v.  People,  49  Wis.  410,  p.  251. 
Yot 
Yen 


foe  v.  People,  49  Wis.  410,  p.  251. 
L'oung  v.  Makepeace,  103  Mass.  50,  p.  97. 
L'oung  v.  O'Xeal,  57  Ala.  5C6,  p.  153. 


7.. 


Zimmerman  v.  Hesler,  32  Md.  274,  p.  123. 
/ugHSti  v.  Lamer,  12  Moore,  331,  pp.  120, 


CHAPTER  I. 


THE  ADMISSIBILITY  IN  EVIDENCE  OF  EXPERT  TESTIMONY. 
SECTION. 

1.  The  Term  Expert  Defined. 

2.  The  Practice  of  Admitting  Expert  Testimony  an  Ancient  One. 

3.  Opinion  Evidence — Xon-Professional  Witnesses. 

4.  Opinion  Evidence  —  Xon-Professional  Witnesses  —  The  Subject 

Continued.    ^ 

5.  Opinion  Evidence— When  Expert  Testimony  is  Admissible. 

C.  When  Expert  Testimony  is  Admissible— The  Subject  Continued. 

7.  Meaning  of  the  terms  u  Science"  and  "Art." 

8.  Expert  Testimony— When  Inadmissible. 

9.  Expert  Testimony— When  Inadmissible— The  Subject  Continued. 

10.  Expert  Testimony — When  Inadmissible — The  Subject  Continued. 

11.  luadrnissibility  of  Opinions  founded  on  a  Theory  of  Morals  or 

Ethics. 

12.  Inadmissibility  of  Opinions  on  Abstract  Questions  of  Science  not 

Related  to  the  Facts  in  Issue. 

13.  Inadmissibility  of  Opinions  Based  on  Speculative  Data. 

14.  Inadmissibility  of  the  Testimony  of  Experts  who  have  made  Ex 

Parte  Investigations. 

§  1.  The  Term  "Expert"  Defined. — Strictly  speaking, 
an  "expert"  in  any  science,  art  or  trade,  is  one  who,  by 
practice  or  -observation,  has  become  experienced  therein. 
He  has  been  defined  as  "a  person  of  skill;"1  as  "a 
skillful  or  experienced  person ;  a  person  having  skill,  ex- 
perience, or  peculiar  knowledge  on  certain  subjects,  or  in 
certain  professions;  a  scientific  witness."2  "An  expert" 
said  Mr.  Justice  FOLGEB,  "is  one  instructed  by  experience, 

1  Rochester  v.  Chester,  3  X.  H.  349,  365. 

2  Heald  v.  Thing,  45  Me.  392,  394. 

0) 


2  EXPERT  TESTIMONY, 

and  to  become  one,  requires  a  course  of  previous  habit  and 
practice,  or  of  study,  so  as  to  be  familiar  with  the  subject."1 
"All  persons,  I  think,"  said  Mr.  Justice  MAULE,  "who 
practice  a  business  or  profession  which  requires  them  to 
possess  a  certain  knowledge  of  the  matter  in  hand,  are  ex- 
perts so  far  as  expertness  is  required."2  And  this  language 
has  been  adopted  by  the  court  in  Virginia.3  In  New  Hamp- 
shire, we  find  Mr.  Justice  DOE  declaring:  "An  expert 
must  have  made  the  subject  upon  which  he  gives  his  opinion, 
a  matter  of  particular  study,  practice  or  observation,  and 
he  must  have  particular  special  knowledge  on  the  subject."4 
While  Mr.  Chief  Justice  AMES,  of  Ehode  Island,  says : 
"Knowledge  of  any  kind,  gained  for  and  in  the  course  of 
one's  business  as  pertaining  thereto,  is  precisely  that  which 
entitles  one  to  be  considered  an  expert,  so  as  to  render  his 
opinion,  founded  on  such  knowledge,  admissible  in  evi- 
dence."5 "An  expert,"  says  the  court  in  Vermont,  through 
Mr.  Justice  EOYCE,  "  is  defined  to  be  a  person  that  possesses 
peculiar  skill  and  knowledge  upon  the  subject  matter  that  he 
is  required  to  give  an  opinion  upon."6  As  defined  by  Mr.  Chief 
Justice  SHAW  in  Massachusetts,  an  "expert  is  a  person  of 
large  experience  in  any  particular  department  of  art,  business 
or  science."7  As  stated  by  Mr.  Justice  KEDFIELD  in  his  edi- 
tion of  Greenleaf's  Evidence,  "The  term  'expert'  seems  to 
imply  both  superior  knowledge  and  practical  experience  in 
the  art  or  profession ;  but  generally,  nothing  more  is  re- 
quired to  entitle  one  to  give  testimony  as  an  expert,  than 
that  he  has  been  educated  in  the  particular  art  or  profes- 
sion."8 For  persons  are  presumed  to  understand  questions 
pertaining  to  their  own  profession  or  business.9  As  the 

1  Nelson  v.  Sun  Mutual  Ins.  Co.,  71  N.  Y.  453,  460. 

2  Vander  Donckt  v.  Thellusson,  8  Man.  G.  &  S.  (65  Eng.  C.  L.)  812. 

3  Bird  v.  Commonwealth,  21  Gratt.  800. 

4  Jones  v.  Tucker,  41  1ST.  H.  546. 

5  Buffum  v.  Harris,  5  E.  I.  250. 

6  State  v.  Phair,  48  Vt.  366,  377, 

7  Dickenson  v.  Fitchburg,  13  Gray,  546,  555. 
81  Greenl.  Evid.,  §440. 

9  Jones  v.  White,  11  Humph.  268.    And  see  State  v.  Clark,  15  S.  C. 
(N.  s.)  403,  408. 


ADMISSIBILITY  IX  EVIDENCE  OF  EXPERT  TESTIMONY.  3 

opinions  of  experts  may  rest  either  on  their  personal  knowl- 
edge, or  on  facts  testified  of  by  other  witnesses,1  it  is  error  to 
assume,  as  is  done  in  one  case,2  that  an  expert  is  one  who 
simply  testifies  from  premises  furnished  by  the  testimony 
of  other  witnesses.  In  a  matter  of  science,  no  individual 
can  be  considered  an  expert  who  does  not  thoroughly  under- 
stand the  sciences  involved.8 

§  2.  The  Practice  of  Admitting  Expert  Testimony  an 
Ancient  One. — The  practice  of  admitting  the  evidence  of 
witnesses,  who  have  become  qualified  by  study  and  experi- 
ence to  express  opinions  upon  questions  of  science  and  art, 
is  by  no  means  peculiar  to  modern  times.  By  the  Roman 
law,  persons  who  were  artis  periti  could  be  summoned  by 
thejudex  at  his  discretion,  in  order  to  inform  himself  as  to 
physical  laws  or  phenomena.4  And  the  celebrated  criminal 
code  framed  by  the  Emperor  Charles  the  Fifth,  at  Ratisbon 
in  1532,  contained  a  formal  enactment  requiring  the  opinion 
of  medical  experts  to  be  taken  in  all  cases  where  death  was 
supposed  to  have  been  occasioned  by  violent  means.6  In 
IGOb',  Henry  the  Fourth,  of  France,  in  giving  letters  patent 
to  his  first  physician,  conferred  on  him  the  power  of 
appointing  two  surgeons  in  every  city  or  important  town, 
whose  duty  it  should  exclusively  be  to  examine  all  wounded 
or  murdered  men,  and  report  thereon.  And  in  1692,  by 
an  order  of  the  Council  of  State,  it  was  ordained  that  physi- 
cians should  be  associated  with  them.6  While  in  England 
one  of  the  early  records  shows,7  that  on  an  appeal  of 
mayhem,  the  defendant  prayed  the  court  to  see  the  wound 
for  the  purpose  of  determining  whether  there  had  been  a 
maiming  or  not,  but  the  court  did  not  know  how  to  decide, 

1  Snow  v.  Boston  etc.  K.  R.  Co.,  65  Me.  230,  232;  Lessee  of  Forbes  v. 
Caruthers,  3  Yeates,  527;  Polk  v.  State,  36  Ark.  117,  124,  125. 
*  Travis  v.  Brown,  43  Penn.  St.  9, 13,  14. 

3  Allen  v.  Hunter,  6  McLean,  303,  310. 

4  L.  8,  §  1,  x.  1 ;  L.  3,  §  4,  xi.  6;  L.  3,  Cod.  fin.  reg.,iii.  39.    Endemau, 
243. 

5  See  2  Beck's  Med.  Juris.  896. 

6  Fodere,  Introduction,  Vol.  I,  p.  32. 
?  28  Ass.  pi.  5. 


4  EXPERT  TESTIMONY. 

as  the  wound  was  new ;  and  thereupon  the  defendant  took 
issue,  and  prayed  the  court  that  the  mayhem  might  be 
examined.  A  writ  was  accordingly  sent  to  the  sheriff  to 
cause  to  come,  medicos  chirurgicos  de  melioribus,  London, 
ad  informandum  dominum  regem  et  curiam  de  his,  qua  Us 
ex  parte  domini  regis  injungerentur.  And,  in  1553,  Mr. 
Justice  Saunders  is  reported  as  saying:  "If  matters  arise 
in  our  law  which  concern  other  sciences  or  faculties,  we 
commonly  apply  for  the  aid  of  that  science  or  faculty  which 
it  concerns,  which  is  an  honourable  and  commendable  thing 
in  our  law,  for  thereby  it  appears  that  we  don't  despise  all 
other  sciences  but  our  own,  but  we  approve  of  them,  and 
encourage  them  as  things  worthy  of  commendation."1 
Instances  are  recorded  in  the  Year  Books,  where  the  courts 
received  the  opinions  of  witnesses  learned  in  the  sciences 
and  arts.2 

§  3.  Opinion  Evidence  —  X on-Professional  Witnesses. 
—  The  rule  admitting  the  testimony  of  experts  is  ex- 
ceptional,3 for  no  principle  of  the  law  is  better  settled  than 
that  the  opinions  of  witnesses  are,  in  general,  inadmissible 
in  evidence.4  They  must  state  facts,  and  not  opinions 

1  Buckley  v.  Kice,  1  Plowden.  125. 

2  9  H.  7,16;  7H.  6,  11. 

»  Ellingwood  v.  Bragg,  52  N.  H.  488;  Polk  v.  State,  36  Ark.  117, 125. 

«  Continental  Ins.  Co.  v.  Delpench,  82  Penn.  St.  ^225;  Frost  v.  Blanch - 
ard,  97  Mass.  155;  Hames  v.  Brownlee,  63  Ala.  277;  Fitzgerald  v.  Hay- 
•vvard,  50  Mo.  516;  Holden  v.  Robinson  Co.,  65  Me.  216;  Thomas  v. 
State,  40  Texas,  38;  Lawrence  v.  Hudson,  59  Tenn.  671;  Benedict  v. 
City  of  Fon  du  Lac,  44  Wis.  495;  Cummins  v.  State,  58  Ala.  387;  Lewis 
Y.  Brown,  41  Me.  448;  Scaggs  v.  Baltimore,  etc.  R.  R.  Co.,  10  Md.  268; 
Higgins  v.  Carlton,  28  Md.  115;  Hayes  v.  Wells,  34  Md.  513;  Babcock 
T.  Middlesex  Savings  Bank,  28  Conn.  306;  McKnight  v.  State,  6  Tex.  Ct. 
of  App.  162;  Seibles  v.  Blackwell,  1  McM.  (S.  C.)  57;  Dawson  v.  Cal- 
laway,  18  Ga.  573;  Hawkins  v.  State,  25  Ga.  207;  Central  Railroad,  etc. 
v.  Kelly,  58  Ga.  107;  Rochester  v.  Chester,  3  N.  H.  364;  Patterson  v. 
•Colebrook,  9  Foster  (X.  H.)  94;  Daniels  v.  Mosher,  2  Mich.  183;  Griffin 
v.  Town  of  Willow,  43  Wis.  509;  Wood  v.  Chicago,  etc.  R.  R.  Co.,  40 
"Wis.  582;  Montgomery  v.  Town  of  Scott,  34  Wis.  338;  Hollimau  v. 
•Cabanne,  43  Mo.  568;  Bailey  v.  Pool,  13  Ired.  (N.  C.)  406;  New  Albany 
•etc.  R.  R.  Co.  v.  Huff,  19  Ind.  315;  Robinson  v.  Fitchburg,  etc.  R.  R. 
R.  Co.,  7  Gray  (Mass.)  92;  Forbes  v.  Caruthers,  3  Yeates,  527;  Merritt 
v.  Seaman,  6  H.  Y.  168;  Berckman  v.  Berckman,  16  N.  J.  Eq.  122 


ADMISSIBILITY  IN  EVIDENCE  OF  EXPERT  TESTIMONY.  5 

deduced  from  the  facts  ;  for  it  is  the  peculiar  province  <5f 
the  jury  to  determine  upon  the  inferences  which  are  to  be 
drawn  from  the  facts.  But  to  this  general  rule  there  are 
well  recognized  exceptions.  Experience  has  demonstrated 
the  difficulty  which  exists  in  certain  cases,  of  stating  the 
facts  in  detail  to  the  jury  in  such  a  manner,  that  they  shall 
produce  the  same  impression  upon  the  minds  of  the  jury-* 
men  that  they  have  legitimately  produced  upon  the  minds 
of  the  witnesses.1  So  that  from  the  very  necessities  of  the 
case,  it  is  sometimes  found  essential  that  the  opinions  of 
ordinary  witnesses  should  be  received,  as  otherwise  it 
would  be  impossible  to  arrive  at  any  accurate  conclusion  as 
to  the  facts  involved.  Hence  the  opinions  of  witnesses, 
possessing  no  peculiar  qualifications,  have  been  received  as 
to  the  identity  of  persons  whom  they  have  seen,  or  things 
which  they  have  observed,2  as  well  as  to  duration,  distance, 
dimension,  velocity,  etc.3  And  a  witness,  without  being  an 
expert,  may  be  asked  whether  a  person  appeared  sober,  or 
intoxicated  at  the  time  he  saw  him,*  and  that  without  it 
being  shown  that  the  witness  had  any  previous  knowledge 
of  the  habits  and  conduct  of  such  person.6  And  it  does 
not  seem  to  be  necessary  that  a  person  should  be  an  expert 
in  order  to  make  his  opinion  admissible  as  to  the  character 
of  certain  liquor,  as  to  whether  it  was  gin  or  not.6  The 

Corlis  v.  Little,  13  X.  J.  Law,  232;  Massachusetts  Life  Ins.  Co.  v.Eshel- 
man,  30  Ohio  St.  647;  Turner  v.  Cook,  36  Ind.  129;  Shepard  v.  Pratt,  16 
Kan.  209;  Koons  v.  St.  Louis  &  Iron  Mountain  R.  R.  Co.,  65  Mo.  592; 
Mascheck  v.  St.  Louis  R.  R.  Co.,  1  Mo.  App.  600;  Gasseuheimer  v. 
State,  52  Ala.  314;  McAdory  v.  State,  59  Ala.  92 :  Houston,  etc.  R.  R.  Co. 
Y.  Smith.  52  Tex.  178. 

1  See  Sydleman  v.  Beckwith,  43  Conn.  9. 

*  King  v.  X.  Y.  Central,  etc.  R.  R.  Co.,  72  X.  Y.  607;  Woodward  v. 
State,  4  Baxter  (Tenn.)  322;  Turner  v.  McFee,  61,  Ala.  468;  Beverly  v. 
Williams,  4  Dev.  &  Batt.  (NT.  C.)  236.  In  Commonwealth  v.  Williams, 
105  Mass.  62,  there  was  identification  of  a  burglar  by  his  voice. 

8  State  v.  Folwell,  14  Ivans.  105;  Eastman  v.  Amoskeag  Manuf.  Co.,  44 
N.  H.  143. 

4  State  v.  Huxford,  47  Iowa,  16;  People  v.  Eastwood,  14  N.  Y.  562; 
s.  c.,  3  Parker  Cr.  Cas.  25;  Stacy  v.  Portland  Publishing  Co.  68  Me.  279. 

5  Castner  v.  Sliker,  33  N.  J.  Law.  95;  s.  c.,  Ibid.  507. 

s  Commonwealth  v.  Timothy,  8  Gray  (Mass.)  480.  See  also  State  v. 
Miller,  53  Iowa,  84. 


6  EXPERT  TESTIMONY. 

opinions  of  witnesses  have  been  received,  that  certain  per- 
sons appeared  attached  to  each  other,1  or  that  a  person 
appeared  to  be  sad,2  or  was  of  a  certain  age,3  or  seemed  to 
be  suffering  and  looked  bad,4  or  was  eccentric,5  or  was  of  a 
certain  nationality.6  So  the  opinions  of  ordinary  witnesses 
have  been  admitted  in  evidence,  that  a  horse  appeared  well 
and  free  from  disease ; 7  that  a  horse  was  safe  and  kind,8  or 
that  he  had  a  sulky  disposition,9  and  that  a  heap  of  stones 
in  a  highway  was  an  object  calculated  to  frighten  horses  of 
ordinary  gentleness.10  And  a  witness  possessing  no  special 
qualifications  has  been  permitted  to  express  an  opinion 
that  certain  shoes  which  he  had  seen  appeared  as  if  they 
had  recently  been  washed,11  and  even  that  certain  hairs  were 
human,12  and  also  that  certain  footprints  corresponded  with 
certain  boots,13  and  that  a  certain  wagon  made  certain  tracks,14 
and  that  the  sound  of  a  wagon  seemed  to  come  from  a  cer- 
tain point.15  The  opinion  of  a  witness  has  been  received 
that  a  certain  estate  was  solvent.16 

§  4.  Opinion  Evidence — Non-Professional  Witnesses — 
Subject  Continued. —  But  the  opinions  of  non-professional 
witnesses  are  never  received,  where  the  inquiry  is  into  a 

1  Trelawney  v.  Colman,  2  Starkie  R.  168;  McKee  v.  Nelson,  4  Cowen 
(N.  Y.)  355;  Pelarnourges  v.  Clark,  9  Iowa,  1,  17.    See  too,  Evans  v. 
People,  12  Mich.  27,  35;  Blake  v.  People,  73  N.  Y.  586. 

2  Culver  v.  Dwight,  6  Gray  (Mass.)  444. 

3Foltz  v.  State,  33  Ind.  215;  Morse  v.  State,  6  Conn.  9;  DeWitt  v. 
Baily,  17  1ST.  Y.  344;  Benson  v.  McFadden,  50  Ind.  431;  Kansas  Pacific 
R.  R.  Co.  v.  Miller,  2  Col.  442. 

4  South,  etc.  Railroad  Co.  v.  McLendon,  63  Ala.  266. 

5  Fraser  v.  Jennison,  42  Mich.  206,  215. 

6  Kansas  Pacific  R.  R.  Co.  v.  Miller,  2  Col.  442. 
i  Spear  v.  Richardson,  34  N.  H.  428. 

8  Sydleman  v.  Beckwith,  43  Conn.  9. 

9  Whittier  v.  Franklin,  46  N.  H.  23. 

10  Clinton  v.  Howard,  42  Conn.  294. 

«  Commonwealth  v.  Sturtivant,  117  Mass.  122. 
M  Commonwealth  Y.  Dorsey,  103  Mass.  412. 

18  Commonwealth  v.  Pope,  103  Mass.  440;  State  v.  Morris,  84  X.  C.  756; 
State  v.  Reitz,  83  X .  C.  634. 
14  State  v.  Folwell,  14  Kans.  105. 
is  State  v.  Shinborn,  46  X.  H.  497. 
16  Reed  v.  Timmins,  52  Texas,  84. 


ADMISSIBILITY  IX  EVIDENCE  OF  EXPERT  TESTIMONY.  7 

subject  matter,  the  nature  of  which  requires  some  peculiar 
habit,  study,  or  scientific  knowledge  to  enable  one  to  under- 
stand i-t  and  to  form  a  correct  judgment  thereon.1  This 
principle  is  more  fully  considered  hereafter.  It  is,  how- 
ever, to  be  observed  that  in  the  case  of  non-professional 
witnesses,  it  is  absolutely  essential  that  they  should  have 
had  the  means  of  personal  observation,  and  should  have 
acquired  a  personal  knowledge  of  the  facts,  as  distinguished 
from  a  knowledge  acquired  from  the  testimony  of  others.* 
For  no  one  but  an  expert  can  give  testimony  based  on  the 
testimony  of  others.8  The  Supreme  Court  of  Massa- 
chusetts, in  speaking  of  the  admissibility  of  the  opinions  of 
non-professional  witnesses,  has  laid  down  the  law  as  fol- 
lows:  "The  competency  of  this  evidence  rests  upon  two 
iiecessarjr  conditions :  first,  that  the  subject  matter  to 
which  the  testimony  relates  cannot  be  reproduced  or 
described  to  the  jury  precisely  as  it  appeared  to  the  witness 
at  the  time  ;  and  second,  that  the  facts  upon  which  the 
witness  is  called  to  express  his  opinion,  are  such  as  men  in 
general  are  capable  of  comprehending  and  understanding. 
When  these  conditions  have  been  complied  with  or  ful- 
filled in  a  given  case,  the  court  must  then  pass  upon  the 
question,  whether  the  witness  had  the  opportunity  and  means 
of  inquiry,  and  was  careful  and  intelligent  in  his  observa- 
tion and  examination.  It  is  not  the  mere  qualification  of 
the  witness,  but  the  extent  and  thoroughness  of  his  exami- 
nation into  the  specific  facts  to  which  the  inquiry  relates, 
iind  the  general  character  of  those  facts,  as  affording  to 
one,  having  his  opportunity  to  judge,  the  requisite  means 
to  form  an  opinion.  The  same  rule  applies  to  this  class  of 
testimony,  as  to  the  testimony  of  experts,  whether  the  ex- 
pert is  competent  by  his  study  or  business,  and  whether  he 
has  qualified  himself  to  testify,  or  had  proper  opportunity 
to  examine,  are  preliminary  questions  for  the  court."4 

1  Linn  v.  Sigsbee,  67  111.  75. 

8  Eyerman  v.  Sheehan,  52  Mo.  221 ;  Sydlencan  v.  Beckwith,  43  Conn.  9. 
3  Paige  v.  Hazard,  5  Hill  (X.  Y.)  604;  Hook  v.  Stovall,  30  Ga.  418. 
*  Commonwealth  v.  Stitrtivant,  117  Mass.  122,  137. 


EXPERT  TESTIMONY. 

While  the  general  rule  requires  the  witness  first  to  state  the 
facts  upon  which  his  opinion  is  based,1  yet  this  is  not  always 
the  case.  For  instance,  in  questions  relating  to  identity  of 
persons,  the  identification  may  be  by  the  mere  expression 
of  the  countenance,  which  cannot  be  described.  And  the 
witness  may  be  correct  although  unable  to  describe  a  single 
feature,  or  to  give  the  color  of  the  hair,  or  of  the  eyes,  or 
the  particulars  of  the  dress.2 

§  5.  Opinion  Evidence  —  When  Expert  Testimony  i& 
Admissible. —  The  rule  is,  that  the  opinions  of  experts 
or  skilled  witnesses  are  admissible  in  evidence  in  those 
cases  in  which  the  matter  of  inquiry  is  such,  that  inex- 
perienced persons  are  unlikely  to  prove  capable  of  form- 
ing a  correct  judgment  upon  it,  for  the  reason  that  the 
subject  matter  so  far  partakes  of  the  nature  of  a  sci- 
ence, art  or  trade,  as  to  require  a  previous  habit,  or  expe- 
rience, or  study  in  it,  in  order  to  acquire  a  knowledge 
of  it.  When  the  question  involved  does  not  lie  within  the 
range  of  common  experience,  or  common  knowledge,  but 
requires  special  experience,  or  special  knowledge,  then  the 
opinions  of  witnesses  skilled  in  the  particular  science,  art 
or  trade  to  which  the  question  relates,  are  admissible  in 
evidence.3  "It  is  not  because  a  man  has  a  reputation  for 

1  See  §  61,  and  cases  cited  in  note  at  end  of  that  section. 

2  See  Sydlernan  v.  Beckwith,  43  Conn.  9,  13. 

3Folkes  v.  Chadd,  3  Douglas,  (26  Eng.  C.  L.  63)  175;  Chaurand  v. 
Angersteiu,  Peake  X.  P.  C.  61 ;  Campbell  v.  Ricards,  5  Barn.  &  Ad. 
840 ;  Davis  v.  State,  38  Md.  15, 38 ;  City  of  Chicago  v.  McGiven,  78  111.  347 ; 
City  of  Parsons  v.  Lindsay,  26  Kans.  426,  432 ;  Monroe  v.  Lattin,  25  Kans. 
351;  Roberts  v.  Commissioners  of  Brown  county,  21  Kaus.  248;  Crom- 
well v.  Western  Reserve  Bank,  3  Ohio  St.  406;  Cleveland  etc.  R.  R.  Co. 
v.  Ball,  5  Ohio  St.  568,  573;  Page  v.  Parker,  40  X.  H.  59;  Jones  v. 
Tucker,  41  X.  H.  546;  Sowers  v.  Dukes,  8  Minn.  23;  Cole  v.  Clark,  3 
Wis.  323 ;  Cottrill  v.  Myrick,  12  Me.  222,  231 ;  Humphries  v.  Johnson, 
20  Iiid.  190;  Dillard  v.  State,  58  Miss.  368;  Wagner  v.  Jacob,  26  Mo. 
530;  Xewmark  v.  Liverpool  etc.  Ins.  Co.,  30  Mo.  165;  Whitmore  v. 
Bowman,  4  G.  Greene,  (Iowa,)  148;  Pelamourges  v.  Clark,  9  Iowa,  1,13; 
Bearss  v.  Copley,  10  X.  Y.  95;  Robertson  v.  Stark,  15  X.  H.  109, 113; 
Xorman  v.  Wells,  17  Wend.  136,  162;  Lincoln  v.  Saratoga  etc.  R.  R.  Co., 
23  Wend.  425,  432;  Terpenning  v.  The  Corn  Exchange  Ins  Co.,  43  X.Y. 
279,  282;  Evansville  R.  R.  Co.  v.  Fitzpatrick,  10  Ind.  120;  Mish  v. 


ADMISSIBILITY  IN  EVIDENCE  OF  EXPERT  TESTIMONY.  9 

sagacity,  and  judgment,  and  power  of  reasoning,"  as  Mr. 
Chief  Justice  SHAW  has  said,  "  that  his  opinion  is  admissi- 
ble ;  if  so,  such  men  might  be  called  in  all  cases,  to  advise 
the  jury,  and  it  would  change  the  mode  of  trial.  But  it  is 
because  a  man's  professional  pursuits,  his  peculiar  skill  and 
knowledge  in  some  department  of  science,  not  common  to 
men  in  general,  enable  him  to  draw  an  inference,  where 
men  of  common  experience,  after  all  the  facts  proved, 
would  be  left  in  doubt."1  And  the  rule  admitting  the 
opinions  of  experts  in  such  cases,  is  founded  on  necessity,2 
for  juries  are  not  selected  with  any  view  to  their  knowledge 
of  a  particular  science,  art  or  trade,  requiring  a  course  of 
previous  study,  experience  and  preparation.3  It,  therefore, 
becomes  matter  of  necessity,  when  questions  arise  which  do 
not  lie  within  the  ordinary  information  of  men  in  general, 
but  fall  rather  within  the  limits  of  some  art  or  science,  that 
juries  should  have  the  benefit  to  be  derived  from  the  opin- 
ions of  witnesses  possessing  peculiar  skill  in  the  particular 
departments  of  knowledge  to  which  such  questions  relate. 
So  that  it  may  be  said  that  the  foundation  on  which  expert 
testimony  rests,  is  the  supposed  superior  knowledge  or 
experience  of  the  expert  in  relation  to  the  subject  matter 
upon  which  he  is  permitted  to  give  an  opinion  as  evidence.4 
And  it  has  been  said  that  it  is  because  all  persons  have  not 
the  leisure  or  capacity  to  master  the  principles  of  art  or 

Wood,  34  Penn.  St.  451,  453;  Snow  v.  Boston  etc.  R.  R.  Co.,  65  Me.  230; 
Tebbetts  v.  Haskins,  16  Me.  283,  287;  Forbes  v.  Caruthers,  3  Yeates, 
(Penn.)  527 ;  Hastings  v.  Steamer  Uncle  Sam,  10  Cal.  341 ;  Kline  v.  K. 
C.,  St.  J.  etc.  R.  R.  Co.,  50  Iowa,  656;  Hamilton  v.  Des  Moines  Valley 
R.  R.  Co.,  36  Iowa,  31;  Bills  v.  Ottuimva,  35  Iowa,  107;  Higgins  v. 
Carlton,  28  Md.  115;  Marshall  v.  Columbian  etc.  Ins.  Co.,  7  Foster,  (N. 
H.)  157;  Hill  v.  Lafayette  Ins.  Co.,  2  Mich.  476,  481 ;  Milwaukee  etc.  R. 
R.  Co.  v.  Kellogg,  94  U.  S.  469,  473;  Lester  v.  Pitsford,  7  Vt.  158;  Cav- 
endish v.  Troy,  41  Vt.  99, 108;  Rochester  etc.  R.  R.  Co.  v.  Endlong,  10 
How.  Pr.  289,  291;  Slater  v.  Wilcox,  57  Barb.  604,  608;  Taylor  v.  Town 
of  Monroe,  43  Conn.  36,  43;  State  v.  Clark,  15  S.  C.  (K.  s.)  403, 408. 

1  New  England  Glass  Co.  v.  Lovell,  7  Cush.  319. 

2  State  v.  Clark,  12  Ired.  (1ST.  C.)  Law,  152, 153;  City  of  Chicago  v. 
McGiven,  78  111.  347. 

3  Hartford  Protection  Ins.  Co.  v.  Harmer,  2  Ohio  St.  452,  457. 

4  Clark  v.  Rockland  Water  Power  Co.,  52  Me.  63,  77. 


10  EXPERT  TESTIMONY. 

science  ;  that  those  who  are  specially  skilled  in  either,  are 
allowed  to  give  their  opinions  in  evidence.1 

§  6.  AVhen  Expert  Testimony  is  Admissible — The 
Subject  Continued.  —  The  Supreme  Court  of  New  Hamp- 
shire, in  declaring  under  what  circumstances  the  testimony 
of  experts  may  be  properly  received  in  evidence,  has 
classified  the  cases  under  three  heads,  and  declares  that 
experts  may  give  their  opinions  : 

1.  Upon  questions  of  science,  skill  or  trade,  or  others  of 
like  kind. 

2.  When  the  subject  matter  of  inquiry  is  such,  that  inex- 
perienced persons  are  unlikely  to  prove  capable  of  forming 
a  correct  judgment  upon  it,  without  such  assistance. 

3.  When  the  subject  matter  of  investigation  so  far  par- 
takes of  the  nature  of  a  science,  as  to  require  a  course  of 
previous  habit  or  study,   in  order  to  the  attainment  of  a 
knowledge  of  it.2 

And  a  very  satisfactory  statement  of  the  law  upon  this 
point,  is  to  be  found  in  a  recent  decision  of  the  Supreme 
€ourt  of  Iowa,  and  is  as  follows  :  "It  is  often  very  difficult  to 
determine  in  regard  to  what  particular  matters  and  points 
witnesses  may  give  testimony  by  way  of  opinion.  It  is 
doubtful  whether  all  the  cases  can  be  harmonized,  or 
brought  within  any  general  rule  or  principle.  The  most 
comprehensive  and  accurate  rule  upon  the  subject,  we  believe 
to  be  as  follows :  That  the  opinion  of  witnesses  possessing 
peculiar  skill  is  admissible  whenever  the  subject  matter  of 
inquiry  is  such,  that  inexperienced  persons  are  not  likely  to 
prove  capable  of  forming  a  correct  judgment  upon  it,  with- 
out such  assistance  ;  in  other  words,  when  it  so  far  partakes 
of  the  nature  of  a  science,  as  to  require  a  course  of  previous 
habit  or  study  in  order  to  the  attainment  of  a  knowledge  of 
it,  and  that  the  opinions  of  witnesses  cannot  be  received 
when  the  inquiry  is  into  a  subject  matter,  the  nature  of 
which  is  not  such  as  to  require  any  particular  habits  of 


1  Atchison  etc.  R.  R.  Co.  v.  United  States,  15  Ct.  of  Claims.  140. 

2  Jones  v.  Tucker,  41  X.  H.  546. 


ADMISSIBILITY  IN  EVIDENCE  OF  EXPERT  TESTIMONY.         11 

study  in  order  to  qualify  a  man  to  understand  it.  If  the 
relations  of  facts  and  their  probable  results  can  be 
determined  without  especial  skill  or  study,  the  facts 
themselves  must  be  given  in  evidence,  and  the  conclu- 
sions or  inferences  must  be  drawn  by  the  jury."  l 
In  a  late  case  in  Minnesota,  it  is  said  that  the  opinion 
of  a  witness  possessing  peculiar  skill,  is  admissible  when- 
ever the  subject  of  inquiry  is  such  that  inexperienced 
persons  are  unlikely  to  prove  capable  of  forming  a  cor- 
rect judgment  upon  it  without  such  assistance.2  While 
in  New  York  it  is  said  that  "the  opinions  of  experts 
are  only  admissible,  when  it  appears  from  the  nature  of 
their  avocations,  or  from  their  testimony  concerning  their 
experience,  that  the  matter  inquired  about  involves  some 
degree  of  science  or  skill  which  they  have  made  use  of,  so 
that  from  experience,  they  are  fitted  to  answer  the  question 
propounded  with  more  accuracy  than  others  who  may  not 
have  been  called  upon  to  employ  science,  or  exercise  skill 
on  the  subject."  8  And  it  is  laid  down  that  upon  all  ques- 
tions, except  those,  the  knowledge  of  which  is  presumed  to 
be  alike  common  to  all  men,  whatever  may  have  been  their 
education  or  employment,  the  opinion  of  persons  skilled  in 
the  particular  subject  to  which  the  question  relates,  is  admis- 
sible.4 "The  true  test,"  says  the  Supreme  Court  of  Con- 
necticut, "  of  the  admissibility  of  such  testimony,  is  not 
whether  the  subject  matter  is  common  or  uncommon,  or 
whether  many  persons  or  few  have  some  knowledge  of  the 
matter ;  but  it  is  whether  the  witnesses  offered  as  experts, 
have  any  peculiar  knowledge  or  experience,  not  common  to 
the  world,  which  renders  their  opinions,  founded  on  such 
knowledge  or  experience,  any  aid  to  the  court  or  to  the  jury 
in  determining  the  questions  at  issue."  5 


J  Muklowncy  v.  Illinois  Central  R.  R.  Co.,  36  Iowa,  472. 

s  Kipner  v.  Biebl,  (Sup.  Ct.  of  Minn.)  Alb.  Law  J.,  Sept.  3d,  1881. 

»  Clark  v.  Bruce,  19  Hun,  274,  276. 

<  Rochester  etc.  R.  R.  Co.  v.  Endlong,  10  How.  Pr.  2S9,  291. 

3  Taylor  v.  Town  of  Monroe,  43  Conn.  36,  44. 


12  EXPERT  TESTIMONY. 

§  7.     Meaning  of  the  Terms  "Science"  and  "Art." — It 

is  sometimes  laid  down  in  a  general  way,  that  the  opinions 
of  experts  are  admissible  only  when  the  subject  matter  of 
inquiry  relates  to  some  "science"  or  "  art."  It  is  to  be 
observed,  however,  that  these  words  include  all  subjects  on 
which  a  course  of  special  study  or  experience  is  necessary 
to  the  formation  of  an  opinion,1  and  that  it  is  not  necessary 
"  that  a  specialty  to  enable  one  of  its  practitioners  to  be 
examined  as  an  expert,  should  involve  abstruse  scientific 
conditions."2  "Art,  in  its  legal  significance,  embraces 
every  operation  of  human  intelligence,  whereby  something 
is  produced  outside  of  nature  ;  and  the  term  '  science  '  in- 
cludes all  human  knowledge  which  has  been  generalized, 
and  systematized,  and  has  obtained  method,  relations  and 
the  forms  of  law."  3  So  that,  although  it  is  generally  laid 
down  that  the  opinions  of  experts  are  limited  to  matters  of 
science,  art  or  skill,  yet  this  limitation  is  not  to  be  applied 
in  any  rigid  or  narrow  sense.4  And  every  business  or  em- 
ployment, which  has  a  particular  class  devoted  to  its  pursuit, 
is  said  to  be  an  art  or  trade,  within  the  meaning  of  the  rule.* 
As  has  been  said  in  the  Irish  Exchequer  Chamber  by  Pigot, 
C.  B.,  "the  subjects  to  which  this  kind  of  evidence  is 
applicable,  are  not  confined  to  classed  and  specified  pro- 
fessions. It  is  applicable  wherever  peculiar  skill  and 
judgment,  applied  to  a  particular  subject,  are  required  to 
explain  results,  or  trace  them  to  their  causes."6 

§  8.  Expert  Testimony  —  When  Inadmissible. —  When- 
ever the  subject  matter  of  inquiry  is  of  such  a  character 
that  it  may  be  presumed  to  lie  "  within  the  common  experi- 
ence of  all  men  of  common  education,  moving  in  ordinary 

1  Stephen's  Dig.  of  Law  of  Evid.,  Art.  49,  p.  104. 

2  Story  v.  Maclay,  3  Mon.  (Ky.)  480.  483. 

3  Atchison  etc.  R.  R.  Co.  v.  United  States,  15  Ct.  of  Claims,  140,  per 
Davis  J. 

4  Clifford  v.  Richardson.  18  Vt.  620,  627;   Stnrgis  v.  Knapp,  33  Vt. 
486,  531. 

5  Rochester  etc.  R.  R.  Co.  v.  Endlong,  10  How.  Pr.  289,  291 ;  and  Taylor 
v.  Town  of  Monroe,  43  Conn.  36,  43. 

6  1  Irish  R.  (Com.  L.)  211,  218. 


ADMISSIBILITY  IN  EVIDENCE  OF  EXPERT  TESTIMONY.          13 

walks  of  life,"  the  rule  is  that  the  opinions  of  experts  are 
inadmissible,  as  the  jury  are  supposed  in  all  such  matters 
to  be  entirely  competent  to  draw  the  necessary  inferences 
from  the  facts  testified  of  by  the  witnesses.1  The  testimony 
of  experts  is  inadmissible  upon  a  matter  concerning  which, 
with  the  same  knowledge  of  the  facts,  the  opinion  of  any 
one  else  would  have  as  much  weight.  It  is  only  admissible 
when  the  facts  to  be  determined  are  obscure,  and  can  only 
be  made  clear  by  and  through  the  opinions  of  persons 
skilled  in  relation  to  the  subject  matter  of  inquiry.'-'  "  If 
the  jury  can  be  put  in  possession  of  all  the  facilities  for 
forming  a  correct  opinion  that  the  witness  had,  they  must 
come  to  their  conclusions  unembarrassed  by  the  opinions  of 
others."3  "It  is  only  where  the  matter  inquired  of  lies 
within  the  range  of  the  peculiar  skill  and  experience  of  the 
witness,  and  is  one  of  which  the  ordinary  knowledge  and  ex- 
perience of  mankind  does  not  enable  them  to  see  what 
inferences  should  be  drawn  from  the  facts,  that  the  witness 
may  supply  opinions  as  their  guide."  4  So  that  the  testi- 
mony of  experts  is  inadmissible  in  regard  to  matters  upon 
which  one  individual  can  form  a  judgment  as  well  as 
another,  both  having  equal  knowledge  of  the  circumstances.5 
As  expressed  in  a  recent  case,  the  opinions  of  witnesses, 
though  experts,  are  not  admissible  as  to  matters  which  do 
not  so  far  partake  of  the  nature  of  a  science  as  to  require  a 
course  of  previous  habit  or  study  in  order  to  an  attainment 
of  a  knowledge  of  them.6  While  there  is  no  doubt  as  to 

1  New  England  Glass  Co.  v.  Lovell,  7  Gush.  (Mass.)  319;  Shatter  v. 
Evans,  53  Cal.  32;  City  of  Chicago  v.  McGiven,  78  111.  347;  Xaughton  v. 
Stagg,  4  Mo.  App.  271 ;  Cook  v.  State,  24  N.  J.  Law,  843,  852;  Dillard 
v.  State,  58  Miss.  368;  Gavick  v.  Pacific  R.  R.  Co.,  49  Mo.  274;  Concord 
Railroad  Co.  v.  Greely,  3  Foster  (N.  H.)  237,  243 ;  Nashville,  etc.  R.  R. 
Co.  Y.  Carroll,  53  Tenn.  347;  Linn  v.  Sigsbee,  67  111.  75;  Veerhusen  v. 
Chicago,  etc.  R.  R.  Co.,  53  Wis.  689,  694;  White  v.  Ballon,  8  Allen,  408; 
Hovey  v.  Sawyer,  5  Allen,  554;  Perkins  v.  Augusta,  etc.  Banking  Co.. 
10  Gray,  312;  Clark  v.  Fisher,  1  Paige,  Ch.  171 ;  s.  c.,  19  Am.  Decis.  402. 

*  Western  Ins.  Co.  v.  Tobin,  32  Ohio  St.  77,  96. 

3  Dillard  v.  State,  58  Miss.  368,  388. 

4  Kennedy  v.  People,  39  X.  Y.  245. 

5  Hart  v.  Hudson  River  Bridge  Co.,  84  X.  Y.  56,  60,  61. 

6  Pennsylvania  Coal  Co.  v.  Coulan,  101  111. 


14  EXPERT  TESTIMONY. 

the  general  rule,  it  is  often  found  exceedingly  difficult  to 
determine  whether  the  facts  to  be  examined  are  to  be  con- 
sidered as  beyond  the  range  of  ordinary  intelligence.  It 
is,  therefore,  not  surprising  to  find  the  courts  declaring  that 
"  the  decisions  are  by  no  means  clear  or  satisfactory  upon 
the  distinctions  ' '  between  the  facts  that  lie  within  the  range 
of  common  experience  and  ordinary  intelligence,  and  those 
that  lie  beyond  them.  And  that  "  the  principles  on  which 
the  authorities  rest  are  more  consistent  than  the  attempts 
to  apply  them."  l 

In  illustration  of  the  general  principle  that  the  opinion* 
of  experts  will  not  be  received  as  to  facts  within  the  com- 
mon experience  of  men,  we  shall  notice  the  following  cases. 
It  has  been  held  that  the  opinion  of  one  whose  occupation  was 
the  braking  and  switching  of  cars,  was  inadmissible  on  the 
question  of  whether  it  would  be  prudent  for  a  man  to  stand 
any  other  way  than  flatwise  in  making  a  coupling  of  cars,  and 
whether  it  was  considered  safe  or  unsafe  among  brakemen  to- 
stand  facing  the  draft  iron  while  making  the  coupling.3'  That 
a  railroad  expert  could  not  be  asked  whether  the  time  which 
a  railroad  train  stopped  at  a  station  was  sufficient  to  enable 
passengers  to  get  off.3  That  a  railroad  conductor  could  not 
be  asked  whether  a  person  would  have  been  thrown  from 
the  cars,  if,  at  the  time  of  the  cars  striking,  he  had  been 
holding  on  to  the  brakes,  and  exercising  ordinary  care  and 
prudence  in  his  own  protection  and  preservation.4  That  an 
experienced  railroad  man  could  not  be  asked  the  following 
question :  "  Suppose  there  was  a  man  standing  by  the  side  of 
a  switch  that  night,  and  holding  a  lantern,  such  as  you  have 
described,  a  foot  or  two  from  the  ground,  how  far  away 
from  the  target  could  the  man  see  the  top  of  the  target,  or 
any  part  of  the  target  above  the  lantern  ?  "  5 


1  Evans  v.  People,  12  Mich.  27. 

»  Belair  v.  The  C.  &  N.  W.  R.  Co.,  43  Iowa,  667;  Muldowney  v.  Illinois 
Cent.  R.  R.  Co.,  36  Iowa,  472. 

s  Keller  v.  N.  Y.  Central  R.  R.  Co.,  2  Abbott  (Ct.  of  App.)  480. 
4  Gavisk  T.  Pacific  R.  R.,  49  Mo.  274. 
«  Weane  v.  K.  &  i).  M.  R.  Co.,  45  Iowa,  246. 


ADMISSIBILITY  IN  EVIDENCE  OF  EXPERT  TESTIMONY.         ]  5 

§  9.  Expert  Testimony  —  When  Inadmissible  —  The 
Subject  Continued. —  That  a  medical  expert  who  had  testi- 
fied as  to  the  injury  of  the  plaintiff's -fingers  being  very  se- 
vere—  that  the  fingers  were  badly  mashed  —  that  the  mid- 
dle finger  was,  quite  stiff,  and  forefinger  permanently  stiff  — 
could  not  answer  the  following  questions  : 

"  I  will  ask  you  to  state  to  what  extent  the  injury  im- 
pairs the  usefulness  of  that  hand  for  any  skilled  occupation r 
or  any  occupation  requiring  a  quick  and  ready  use  of  the 
hand?" 

"  State  the  degree  to  which  the  usefulness  of  that  hand 
would  be  impaired  for  skilled  labor,  requiring  a  quick  and 
ready  use  of  the  fingers,  such  as  coupling  and  braking  cars 
on  the  railroad?  "  l 

That  a  physician  could  not  testify  as  to  the  possibility  of 
a  rape  having  been  committed  in  a  particular  manner,  de- 
scribed by  the  prosecutrix.  "  No  peculiar  knowledge  of 
the  human  system  was  necessary  to  answer  it.  It  was  a 
mere  question  of  relative  strength  or  mechanical  possi- 
bility, which  an  athlete  or  a  mechanic  could  have  answered 
as  well  as  a  physician,  and  every  man  upon  the  jury  as  well 
as  either."  2 

That  brokers  and  bankers  could  not  be  asked  whether 
brokers  and  bankers  would  discount  a  note  of  the  appear- 
ance of  the  one  in  question,  without  a  wilful  failure  to 
inquire  into  the  circumstances  under  which  it  was  obtained — 
the  note  was  written  on  tracing  paper.3 

That  detectives  could  not  express  an  opinion  as  to  whether 
it  was  possible  to  commit  a  robbery  in  the  manner  charged.4 
That  a  surveyor  could  not  express  an  opinion  as  an  expert  as 
to  where  the  highest  part  of  a  hill  was.6  That  an  innkeeper 


1  Kline  v.  The  K.  C.,  St.  J.  &  C.  B.  K.  Co.,  50  Iowa,  656. 

2  Cook  v.  State,  24  X.  J.  Law,  843. 

3  Rowlaud  v.  Fowler,  37  Conn.  348. 

4  People  v.  Morrigan,  29  Mich.  1.      "If  experts  were  allowable  on 
questions  of  criminal  science,  the  professors  and  practitioners  of  that 
science  would  naturally  be  the  experts  needed." 

5  Hovey  v.  Sawyer,  5  Allen  (Mass.),  554. 


16  EXPERT  TESTIMONY. 

could  not  express  an  opinion  as  to  whether  it  was  safe  for 
ii  guest  to  keep  his  money  in  a  locked  trunk.1 

That  firemen,  long  connected  with  a  city  fire  department — 
to  whom  had  been  presented  a  plan  of  the  buildings,  with  a 
statement  of  the  distances  between  them,  the  materials  of 
which  they  were  constructed,  the  direction  of  the  wind,  the 
state  of  the  weather,  and  the  fact  that  no  water  was  used 
on  the  fire  —  could  not  be  asked  whether  or  not  in  their 
opinion  the  dwelling  house  and  connected  bui  dings  would 
take  fire  from  the  barn  ;  whether  or  not  it  was  a  common 
occurrence  for  fire  to  be  communicated  from  leeward  to 
windward  across  a  space  greater  than  twenty-six  feet ; 
whether  or  not,  in  their  experience,  large  wooden  buildings 
or  large  fires  made  their  own  currents,  frequently  eddying 
against  the  prevailing  wind.'2 

§  10.  Expert  Testimony  —  When  Inadmissible  —  The 
Subject  Continued. —  That  an  expert  accustomed  to  the  use 
of  fire-arms  could  not  be  asked  whether  a  certain  piece  of 
paper  had  been  used  as  wadding,  and  as  such  shot  from  a 
loaded  gun.3  That  the  question  whether  the  deceased, 
seated  at  or  near  a  window,  through  which  he  was  shot,  could 
have  seen  and  recognized  the  person  on  the  outside  who  in- 
flicted the  wound,  was  not  one  of  skill  or  science,  and  that, 
therefore,  experiments  made  by  others,  and  the  results 
thereof,  and  opinions  founded  thereon,  were  inadmissible.4 

It  has  been  held  that  the  testimony  of  experts  was  in- 
competent to.show  whether  the  placing  of  wet  staves  upon 
the  outside  of  an  arch,  in  which  a  fire  was  kindled,  was  a 
safe  and  prudent  method  of  drying  them.6 

1  Taylor  v.  Monnot,  4  Duer  (N.  Y.)  116. 

2  State  v.  Watson,  65  Me.  74. 

»  Manke  v.  People  24  Hun  (N.  Y.),  316;  s.  c..  78 N.  Y.  611.  The  court 
said  it  could  have  been  determined  by  a  jury  from  a  description  of  the 
facts  touching  the  appearance  of  the  paper  when  found,  such  as  the 
manner  in  which  it  was  folded,  whether  it  appeared  to  have  been  par- 
tially burned,  whether  it  bore  upon  its  creases  traces  of  powder  stains, 
etc. 

4  Jones  v.  State,  71  Ind.  66. 

s  White  v.  Ballon,  8  Allen,  408. 


ADMISSIBILITY  IN  EVIDENCE  OF  EXPERT  TESTIMONY.        17 

That  the  opinion  of  a  person  experienced  in  clearing  land 
by  fire  was  inadmissible,  as  to  the  probability  that  a  fire  set 
under  the  circumstances  described  by  the  witnesses,  would 
have  spread  to  the  adjoining  land.1  But  the  opinion  of  a 
person  experienced  in  prairie  fires  has  been  received  in  an- 
swer to  the  question  :  "  How  many  feet  in  width  in  plowing 
do  you  think  would  be*  necessary  to  stop  a  fire  on  stubble 
land  ?  "  2  The  court  held  that  it  was  not  a  matter  of  com- 
mon knowledge,  as  to  how  far  a  fire  in  the  stubble  might  be 
carried  in  the  air  or  might  "jump."  The  jury  could  not 
be  presumed  as  well  able  to  form  an  opinion  as  could  a  wit- 
ness who  had  had  actual  experience  in  such  matters.  And 
in  a  case  lately  decided  in  New  York  it  has  been  decided 
that  a  witness  experienced  in  clearing  land,  could  express 
an  opinion  as  an  expert  as  to  whether  a  fire  was  set  at  a 
proper  time.  "A  man  who  had  never  cleared  up  land,  or 
worked  a  farm,  might  be  unable  to  determine  whether  the 
time  was  proper  for  burning,  even  after  he  had  been  in- 
formed of  all  the  facts."  3 

It  has  been  held  that  the  question  of  what  is  the  proximate 
cause  of  an  injury  is  not  a  question  of  science,  or  of  legal 
knowledge,  -but  is  a  fact  to  be  determined  by  a  jury  from 
surrounding  circumstances.4  *  Whether  glass  placed  in  a  side- 
walk to  afford  light  to  the  area  below  is  unsafe,  by  reason  of 
the  too  great  smoothness  or  slipperiness  of  its  surface,  is  not 
u  question  of  science  or  skill  such  as  to  render  the  opinions 
of  witnesses  admissible.5  So  it  has  been  said  that  whether 
a  street  crossing  is  unsafe  and  dangerous  is  not  a  question 
of  science  or  skill,  upon  which  it  is  proper  to  receive  the 
opinions  of  witnesses.6  On  the  other  hand,  it  has  been  held 
that  professional  road  builders  may  be  examined  as  experts 


1  Higgins  v.  De\vey,  107  Mass.  494.    And  see  Fraser  v.  Tupper,  29  Vt. 
409. 

2  Kippner  v.  Biebl  (Sup.  Ct.  of  Mian.),  Alb.  Law  J.,  Sept.  3,  1881. 

3  Ferguson  v.  Hubbell,  26  Hun,  250. 

«  Milwaukee,  etc.  R.  R.  Co.  v.  Kellogg,  94  U.  S,  469. 
5  City  of  Chicago  v.  McGiven,  78  111.  347. 
4  City  of  Parsons  v.  Lindsay,  26  Kan.  426,  432. 

(2; 


18  EXPERT  TESTIMONY. 

as  to  the  safety  of  a  road,  and  the  necessity  of  a  railing 
along  an  elevated  part  of  the  road.  "If  this  case,"  say 
the  court,  "  falls  pretty  near  the  line,  we  think  it  is  clearly 
on  that  side  of  the  line  that  permits  expert  testimony." 
In  Wisconsin  it  is  said  that  "  possibly  there  might  be  cases- 
in  which  the  opinions  of  experts  might  be  admissible  upon 
matters  going  to  the  sufficiency  of  a" highway.  Generally r 
however,  it  is  a  pure  question  of  fact,  not  of  science  or 
skill."2 

It  is  evident,  therefore,  that  to  make  the  opinions  of  ex- 
perts admissible  in  evidence  it  is  necessary  : 

First.  That  the  subject  matter  of  inquiry  should  be  within 
the  range  of  the  peculiar  skill  and  experience  of  the  witness. 

And,  Second.  That  it  should  be  one  of  which  the  ordinary 
knowledge  and  experience  of  mankind  does  not  enable  then* 
to  see  what  inferences  should  be  drawn  from  the  facts. 

If  either  of  these  two  requisites  are  wanting,  the  subject 
of  inquiry  is  not  such  as  to  admit  of  the  introduction  of  ex- 
pert testimony.3  And  all  the  cases  recognize  the  rule  that 
it  is  for  the  court  to  determine  whether  the  subject  matter 
is  one  of  science,  art  or  trade,  or  whether  it  is  a  matter  of 
common  experience.4 

§  11.  Iiiadmissibility  of  Opinions  Founded  on  a  Theory 
of  Morals  or  Ethics.  —  The  opinion  of  a  witness,  not 
founded  on  science,  but  as  a  theory  of  morals  or  ethics,  is 
inadmissible  in  evidence,  whether  given  by  professional  or 
unprofessional  witnesses.  Hence,  where  the  question  was 
whether  a  man  who  had  committed  suicide  was  sane  or 
insane,  the  opinion  of  a  physician  that  no  sane  man  would 
commit  suicide  in  a  Christian  country,  was  held  inadmissible, 
as  being  founded,  not  on  the  phenomena  of  mind,  but 
rather  on  a  theory  of  morals,  religion  and  .a  future  state." 

1  Taylor  v.  Town  of  Monroe,  43  Conn.  36.  44. 

2  Benedict  v.  City  of  Fond  du  Lac,  44  AVis.  496.     And  see  Oleson  v.. 
Tolford,  37  Wis.  327;  Montgomery  v.  Scott,  34  Wis.  338. 

3  Manke  v.  People,  24  Hun  (X.  Y.),  416;  s.  c.,  78  N.  Y.  611. 

4  Dillard  v.  State,  58  Miss.  368,  388. 

*  St.  Louis  Mutual  Life  Ins.  Co.  v.  Graves,  C  Bush,  (Ky.)  290. 


ADMISSIBILITY  IX  EVIDENCE  OF  EXPERT  TESTIMONY.         19 

And  the  opinions  of  medical  practitioners  are  inadmissible 
on  the  question  whether  a  physician  has  honorably  and 
faithfully  discharged  his  duty  to  his  medical  brethren.1 

§  12.  Inadmissibility  of  Opinions  on  Abstract  Questions 
of  Science,  not  Belated  to  the  Facts  in  Issue. — The 
opinions  of  professional  witnesses  cannot  be  asked  upon 
mere  abstract  questions  of  science,  having  no  proper  relation 
to  the  facts  upon  which  the  jury  are  to  pass.  The  opinion 
of  an  expert,  to  be  admissible,  must  always  be  predicated 
upon,  and  relate  to  the  facts  disclosed  by  the  evidence  in 
the  case.2 

§  13.  Inadmissibility  of  Opinions  Based  on  Speculative 
Data. — The  rule  is,  that  the  opinions  of  experts  are  not 
admissible  when  based  on  merely  speculative  data.3  On  a 
trial  for  murder,  where  the  question  was  asked  whether  the 
deceased  was  not  addicted  to  the  excessive  use  of  snuff  and 
violent  fits  of  passion,  the  evidence  being  desired  as  a  basis 
for  the  introduction  of  expert  testimony,  to  prove  that  such 
habits  and  temperament  indicated  the  probable  presence  of 
a  condition  from  which  sudden  death  might  well  have 
resulted,  without  reference  to  the  blow  given  by  the  pris- 
oner, it  was  held  that  such  expert  testimony  could  not  be 
received,  as  no  evidence  had  been  introduced,  and  none 
offered,  to  prove  that  the  deceased  was  in  a  violent  fit  of 
passion,  or  had  taken  an  overdose  of  snuff  at  the  time  the 
blow  was  struck.  The  court  ruled  the  testimony  inadmis- 
sible, as  being  speculative  in  its  nature.*  And  where  it  did 
not  appear  that  the  medical  witness  had  been  present  at  the 
post  mortem  examination,  or  that  he  had  any  knowledge  of 
the  case,  or  the  kind,  or  extent  of  the  examination  needed, 
the  court  refused  to  allow  him  to  answer  the  following 
question  :  "  For  the  purpose  of  arriving  at  a  correct  con- 
clusion iu  the  case  of  the  death  of  a  person,  where  you  don't 
know  to  your  own  satisfaction  what  caused  the  death,  how 

1  Ramaclge  v.  Ryan,  9  Bing.  333. 

2  Champ  v.  Commonwealth,  2  Met.  (Ky.)  18. 

3  Cooper  v.  State,  23  Texas,  336,  337. 

4  Ebos  v.  State,  34  Ark.  520. 


SO  EXPERT  TESTIMONY. 

;long  a  time  should  two  men  give  to  a  post  mortem  examina- 
tion? And  would  four  hours  be  sufficient?"1  So  an 
engineer  has  not  been  permitted  to  express  an  opinion  as  to 
the  original  purpose  in  view,  in  building  a  wall  which  had 
been  standing  between  twenty  or  thirty  years.2  The  Su- 
preme Court  of  Mississippi  has  held  it  to  be  incompetent  to 
show  by  the  testimony  of  professional  persons,  in  impeach- 
ment of  the  mother's  testimony,  in  a  prosecution  for 
bastardy,  that  it  was  highly  improbable  that  impregnation 
could  be  produced  by  the  first  act  of  coition.3  Such  testi- 
mony was  said  to  be  too  uncertain,  indefinite,  and  hypo- 
thetical to  form  the  basis  of  judicial  action.  "  The  courts, 
in  our  opinion,"  it  is  said,  "  have  gone  quite  far  enough  in 
subjecting  the  life,  liberty  and  property  of  the  citizen  to 
the  mere  speculative  opinions  of  men  claiming  to  be  experts 
in  matters  of  science,  whose  confidence,  in  many  cases,  bears 
a  direct  similitude  and  ratio  to  their  ignorance.  We  are  not 
-disposed  to  extend  this  doctrine  into  the  field  of  hypotheti- 
cal conjecture  and  probability,  and  to  give  certainty  as  evi- 
dence, to  that  which,  in  its  very  nature,  must  be  wholly 
uncertain  and  unsatisfactory  ;  dependent  on  circumstances 
and  conditions  entirely  secret,  hidden  and  unknown,  as 
facts,  and  without  a  knowledge  of  which,  neither  science 
nor  experience,  however  great,  could  afford  us  the  remotest 
information." 

§  14.  Inadmissibility  of  the  Testimony  of  Experts  who 
have  made  Ex  Parte  Investigations. —  It  is  important  in 
many  cases  that  notice  should  be  given  to  the  opposing  in- 
terest of  the  intention  to  have  experts  make  an  investiga- 
tion of  the  facts  involved.  For  instance,  if  it  is  proposed 
to  make  an  examination  of  blood  on  clothing,  or  of  the 
stomach  of  a  deceased  person  in  cases  of  alleged  poisoning, 
there  are  strong  reasons  why  such  an  examination  should 
be  undertaken  after  notice  has  been  given,  in  order  that  the 
adverse  interest  might  be  properly  represented  at  such,  an 

1  State  v.  Pike,  65  Me.  ill. 

2  Sinnott  v.  Mullin,  82  Penn.  St.  342. 

3  Anonymous,  37  Miss.  54. 


ADMISSIBILITY  IN  EVIDENCE  OF  EXPERT  TESTIMONY.          21 

examination.  And  it  has  been  laid  down  that  there  can  be 
no  question  that  when  the  matter  comes  fairly  up,  such  ex- 
aminations, when  taken  flagrantly  ex  parte,  at  a  time  when 
there  could  readily  have  been  notice  to  the  opposite  side, 
will  be  ruled  out  as  inadmissible.1  The  principle  does  not 
apply,  however,  to  investigations  conducted  by  a  public  offi- 
cer immediately  after  the  commission  of  a  crime,  for  the 
public  action  of  such  a  functionary  is  said  to  be  adequate 
notice  to  all  parties  that  the  proceeding  is  taking  place. 
Neither  does  the  principle  apply  in  those  cases  in  which  the 
investigation  or  examination  could  not  be  enhanced  in  accu- 
racy or  authoritativeness  by  being  preceded  by  notice.2 

When  a  post  mortem  examination  of  a  deceased  person  is 
made,  the  admissibility  of  the  testimony  of  the  physicians 
who  made  it,  does  not  at  all  depend  on  the  thoroughness  of 
the  examination  which  they  made.3  In  the  case  cited,  the 
question  was  whether  death  had  been  caused  by  internal 
disease  or  external  violence.  And  the  physicians  were 
allowed  to  express  an  opinion  thereon,  although  their  exam- 
ination had  not  been  sufficiently  thorough  to  enable  them  to 
state  that  no  other  cause  existed  than  the  one  they  assigned, 
to  which  the  death  could  be  attributed. 

1  2  Wharton  &  Stelle's  Medical  Jurisprudence,  Pt.  II.,  §  124G. 

2  Ibid.,  §  1247. 

8  State  v.  Porter,  34  Iowa,  131, 134. 


22  EXPERT  TESTIMONY. 


CHAPTER  II. 


THE  COMPETENCY  OF  EXPERT  WITNESSES. 
SECTION. 

15.  The  Competency  of  Expert  Witnesses  must  First  be  Shown. 

16.  Their  Competency  a  Question  for  the  Court". 

17.  Whether  a  Witness  Possesses  the  Qualifications  of  an  Expert,  is  a 

Question  of  Fact. 

18.  Preliminary  Examination  of  the  Expert. 

19.  ^o  exact  Test  for  Determining  Amount  of  Experience  Expert 

should  Possess. 

20.  Competency  of  Experts  whose  Knowledge  is  derived  from  Study. 

21.  Competency  of  Experts  whose  Knowledge  is  derived  from  Study 

— The  Subject  Continued. 

22.  Competency  sometimes   dependent  on  whether  the  Expert  has 

Heard  the  Testimony. 

23.  Competency  of  Experts  in  Particular  Cases. 

§  15.  The  Competency  of  Expert  Witnesses  must  First 
be  Shown.  — If  the  subject  matter  of  inquiry  is  such  that 
the  opinion  of  an  expert  may  be  properly  received  in  evi- 
dence, then  the  question  arises,  when  the  witness  is  offered 
as  an  expert,  whether  he  possesses  the  requisite  qualifica- 
tions to  entitle  him  to  testify  in  that  character.  And  that 
he  possesses  such  qualifications,  peculiar  skill  and  experi- 
ence in  the  particular  department  of  inquiry,  must  appear 
in  evidence  before  he  can  properly  be  asked  to  express  any 
opinion  in  the  case.1  "  That  an  expert  must  have  special 
and  peculiar  knowledge  or  skill,  is  as  definite  a  rule  as  that 
the  search  for  a  lost  paper,  or  subscribing  witness,  must  be 

1  Chicago  &  Alton  R.  R.  Co.  v.  Springfield  &  Northwestern  R.  R.Co., 
67  lil.  142;  Heald  v.  Thing,  45  Me.  392;  State  v.  Secrest,  80  N.  C.  450; 
Washington  v.  Cole,  6  Ala.  212;  Tullis  v.  Kidd,  12  Ala.  648;  State  v. 
Ward,  29  Vt.  225,  236;  Tyler  v.  Todd,  36  Conn.  218,  221. 


COMPETENCY  OF  EXPERT  WITNESSES.  23 

diligent  and  thorough."1  Whether  the  witness  has  that 
knowledge,  is  as  much  a  question  of  fact  to  be  determined 
preliminary  to  the  reception  of  his  testimony,  as  the  ques- 
tion whether  the  search  for  a  lost  paper  has  been  diligent 
and  thorough.  And  if  his  testimony  is  called  for  before  his 
qualifications  have  been  shown,  it  has  been  held  sufficient  to 
interpose  the  general  objection,  that  the  testimony  is  "illegal 
and  improper,"  without  interposing  the  special  objection 
that  his  competency  as  an  expert  has  not  been  shown.2 

§  1(5.  Their  Competency  a  Question  for  the  Court. — 
The  question  whether  the  witness  possesses  the  necessary 
qualifications  to  render  him  competent  to  testify  in  the  char- 
acter of  an  expert,  is  a  preliminary  question  addressed  to 
the  court,  which  should  be  satisfied  upon  that  point,  by  the 
presentation  of  proper  evidence.3  The  question  must  be 
determined  by  the  court,  and  cannot  be  referred  by  it  to 
the  jury.4  And  in  determining  whether  the  witness  is  a 
person  of  skill  in  the  particular  department,  or  subject 
matter  in  which  his  opinion  is  desired,  the  rule  is,  that  very 
much  is  left  to  the  discretion  of  the  presiding  judge,5  and 

1  Jones  v.  Tucker,  41  X.  II.  54G. 

2  Brown  v.  Mohawk  &  Hudson  II.  R.  R-  Co.,  1  Howard's  Ct.  of  App. 
<Jas.,  52, 124. 

3  Nelson  v.  Sun  Mutual  Ins.  Co.,  71  X.  Y.  453,  460;  Lincoln  v.  Inhab- 
itants of  Barre,  5  Cush.  591;  Flynt  v.  Bodenhamer,  80  X.  C.  205,  207; 
Gulf  City  Ins.  Co.  v.  Stephens,  52  Ala.  121 ;   Forgery  v.  First  Xational 
Bank.  66  Ind.  123;  Davis  v.  State,  35  Ind.  496;  Boardrnan  v.  Woodman, 
47  X.  11.  120, 135;  Sorg  v.  First  German  Congregation,  63Penn.  St.  156; 
Reynolds  v.  Lounsbury,  6  Hill,  (X.  Y.)  534;   Sikes  v.  Paine,  10  Ired. 
(X.  C.)  Law,  282;  State  v.  Secrest,  80  X.  C.  450;  Washington  v.  Cole,  6 
Ala.  212;  Tullis  v.  Kidd,  12  Ala.  648;  Woodman  v.  Dana,  52  Me.  9, 13; 
Delaware  etc.  Steam  Towboat  Co.  v.  Starrs,  69  Penu.  St.  36;   Jones  v< 
Tucker,  41  X.  H.  546;    Snowden  v.  Idaho  Quartz  Mauuf.  Co.,  55  Cal. 
450;  McKwen  v.  Bigelow,  40  Mich.  217;  State  v.  Ward,  29  Vt.  225,  236. 

4  Fairbank  v.  Ilughson,  13  Reporter,  8.    In  this  case  the  Supreme 
Court  of  Calfornia  reversed  a  judgment,  because  the  trial  court  allowed 
a  book-keeper  in  a  bank  to  testify,  (having  been  offered  as  an  expert  in 
handwriting,)   with  the  remark,   '•  I  shall  hold  it  is  for  the  jury  to  say 
how  much  he  knows  about  it.    I  will  admit  the  testimony." 

5  Hills  v.  Home  Ins.  Co.,  129  Mass.  345;   Chandler  v.  Jamaica  Pond 
Aqueduct,  125  Mass.  544,  551 ;    Tucker  v.  Massachusetts  Central  R.  R. 
Co..  118  Mass.  546;   Lawrence  v.  Boston,  119  Mass.  126;    Lawton  v. 


24  EXPERT  TESTIMONY. 

his  decision  will  not  be  overruled,  except  in  a  clear  and 
strong  case.1  An  objection  to  the  ruling  of  the  court,  upon 
the  sufficiency  of  the  proof  in  such  cases,  must  be  made  at 
the  time  of  the  trial,  as  it  cannot  be  raised  in  the  first 
instance  in  the  court  above.2  And  the  decision  of  the  trial 
court,  as  to  the  qualifications  of  a  witness  introduced  as  an 
expert,  will  be  deemed  conclusive  in  the  court  above,  unless 
the  entire  evidence  upon  that  point  is  reported,  and  appeal's 
to  present  a  question  of  law.3  If  it  appears  that  the 
witnesses  offered  had  any  claim  to  the  character  of  experts, 
the  court  will  not  reverse  on  the  ground  that  their  experience 
was  not  sufficiently  special.4 

§  17.  Whether  a  Witness  Possesses  the  Qualifications 
of  an  Expert  is  a  Question  of  Fact. —  An  examination  of 
the  cases  in  which  the  courts  have  passed  on  the  compe- 
tency of  experts,  shows  a  lamentable  confusion  and  mix- 
ing up  of  matter  of  fact  with  matter  of  law,  it  has  been 
judicially  commented  on  as  leading  to  most  unsatisfac- 
tory results,  and  unnecessarily  obscuring  the  true  aspect 
of  the  law  on  this  subject  by  the  diversity  of  practice 
which  has  prevailed  in  the  judicial  tribunals.  The  subject 
of  the  competency  of  experts  has  been  ably  considered  by 
the  Supreme  Court  of  New  Hampshire,  and  the  principle 
which  should  govern  so  clearly  and  succinctly  laid  down, 
that  much  confusion  will  be  avoided  by  keeping  it  clearly 
in  mind  in  such  cases.  The  principle,  although  "  a  per- 
fectly, clear,  fixed,  and  certain  condition  of  the  law  upon 
the  subject,"  has  been  lost  sight  of  in  many  cases.  As  ex- 


Chase,  108  Mass.  238,  241 ;  Berg  v.  Spink,  24  Minn.  138.  139;  Howard  v. 
Providence,  6  K.  I.  516;  Ardesco  Oil  Co.  v.  Gilson,  63  Penn.  St.  146, 152; 
Kipner  v.  Biebl,  Sup.  Ct.  of  Minn.  (Alb.  Law  J.,  Sept.  3d,  1881)  ;  Sar'e 
v.  Arnold,  7  K.  I.  586;  Delaware  etc.  Steam  Towboat  Co.  v.  Starrs,  69 
Penn.  St.  36. 

1  Sorg  v.  First  German  Congregation,  63  Penn.  St.  156. 

2  Hand  v.  Brookline,  126  Mass.  324. 

3  Gossler  v.  Eagle  Sugar  Refinery,  103  Mass.  331,  335;   Quinsigamond 
Bank  v.  Hobbs,  11  Gray,  250,  258;  Marcy  v.  Barnes,  16  Gray,  161 ;  Sarle- 
v.  Arnold,  7  R.  I.  586. 

4  Delaware  etc.  Steam  Towboat  Co.  v.  Starrs,  69,Penn.  St.  3<X 


COMPETENCY  OF  EXPERT  WITNESSES.  25- 

pressed  by  Mr.  Justice  DOE,  the  rule  is  as  follows  :  "  When 
a  witness  is  offered  as  an  expert  three  questions  necessarijy 
arise:  1.  Is  the  subject  concerning  which  he  is  to  testify, 
one  upon  which  the  opinion  of  an  expert  can  be  received? 
2.  What  are  the  qualifications  necessary  to  entitle  a  witness 
to  testify  as  an  expert?  3.  Has  the  witness  those  qualifi- 
cations? The  first  two  questions  are  matters  of  law;  the 
third  is  matter  of  fact. 

As  to  the  third  question,  while  it  is  settled,  as  matter  of 
law,  what  qualifications  are  requisite,  the  possession  of  those 
qualifications  is  equally  well  settled  to  be  a  question  of 
fact,  purely  within  the  discretion  of  the  judge  before  whom 
the  witness  is  offered.  His  decision  concerning  the  matter 
is  not  subject  to  revision.  It  would  not  be  wise  to  adopt  a 
different  rule.  The  ability  or  disability  of  a  witness  to  tes- 
tify, under  the  legal  requirements  for  the  admission  of 
opinion,  is  a  matter  most  conveniently  and  satisfactorily  de- 
termined at  the  trial,  upon  personal  examination  of  the  wit- 
ness. It  can,  indeed,  be  determined  in  no  other  way.' '  l 
Or,  as  the  Supreme  Court  of  Vermont  has  expressed  it,. 
"  So  long  as  the  evidence  of  facts  do  not  constitute  or  con- 
clusively show  the  skill,  and  such  skill  is  matter  of  fact  to- 
be  inferred  from  such  evidence  or  facts,  the  finding  of  the 
court  in  that  respect  is  not  revisable  as  being  error  in 
law."2 

§  18.  Preliminary  Examination  of  Expert. —  For  the 
purpose  of  determining  the  competency  of  the  witness,  a. 
preliminary  examination  takes  place,  in  which  the  wit- 
ness may  be  asked  to  state  his  acquaintance  with  the 
subject  matter  in  reference  to  which  his  opinion  is  desired,, 
and  what  he  has  done  to  qualify  himself  as  an  expert  in 
that  particular  department  of  inquiry.3  The  court  is  also- 
at  liberty  to  examine  other  witnesses  as  to  whether  he  is 
qualified  to  draw  correct  conclusions  upon  questions  relat- 
ing to  the  science  or  trade  in  relation  to  which  he  is  to  be- 

1  Jones  v.  Tucker,  41  N.  H.  547;  Dole  v.  Johnson,  50  X.  H.  452,  458. 

2  Wright  v.  Williams'  Estate,  47  Vt.  222,  233. 
^Boardman  v.  Woodman,  47  X.  H.  120, 135. 


26  EXPERT  TESTIMONY. 

-examined.1  On  this  preliminary  examination  the  court  sim- 
ply decides  upon  proof  of  the  opportunities  which  the  wit- 
ness has  had  for  acquiring  special  knowledge  and  experience 
in  the  subject  matter,  that  the  jury  may  hear  his  opinion  as 
.a  person  of  science  and  skill.2  In  passing  upon  the  com- 
petency of  the  witness,  however,  the  fact  should  be  borne 
in  mind  that  the  law  does  not  require  that  a  witness  skilled 
in  a  particular  art  or  trade,  should  be  actually  engaged  in 
its  practice  at  the  time  of  the  trial.3  So  one  who,  at  the 
time  he  was  offered  as  a  witness  was  a  student  at  law,  has 
been  allowed  to  testify  as  an  expert  in  the  tanning  business, 
he  having  formerly  been  employed  in  that  trade.4  "  There 
was  nothing  in  the  change  of  employment,  from  tanning 
hides  to  the  study  of  the  law,  which  would  necessarily  de- 
prive him  of  the  skill  acquired  in  his  original  trade."  But 
it  has  been  held  no  error  to  hold  that  a  witness  who  had 
not  been  engaged  in  the  occupation  of  a  plumber  for  twenty 
years,  could  not  testify  as  an  expert  in  matters  pertaining 
to  that  trade.  "  This  was  a  long  time  to  be  out  of  a  busi- 
ness," said  the  court,  "  that  must  have  changed  so  greatly 
in  that  time,  and  we  cannot  say  that  the  ruling  was  clearly 
erroneous.  The  court  must  exercise  a  judicial  discretion 
regarding  the  reception  of  evidence  purporting  to  be  that 
of  experts ;  and  presumptively  there  must  in  a  business 
like  this  be  much  better  expert  evidence  than  that  of  a  per- 
son so  long  out  of  the  business."  5  It  is  evident  that  in  all 
such  cases  the  question  of  competency  must  depend  largely 
-on  the  nature  of  the  trade  or  occupation,  as  well  as  on  the 
length  of  time  since  the  witness  abandoned  it.  It  is  also  to 

.  ]  Mendum  v.  Commonwealth,  6  Rand.  704,  710;  Tullis  v.  Kidd,  12  Ala. 
•C48. 

2  State  v.  Secrest,  80  X.  C.  450,  457. 

3  Vander  Donckt  Y.  Thellusson,  8  Man.  G.  &  S.  (65  Eng.  C.  L.)  812. 
"  Whatever  the  line  of  business  he  now  follows,  if  he  was  an  expert  be- 
iore,  he  can  hardly  be  said  to  be  less  so  now,"  per  Mr.  Justice  Maule. 
.See,  too,  Roberts  v.  Johnson,  58  N.  Y.  613;   Tullis  v.  Kidd,  12  Ala.  648, 
.650. 

4  Bearss  v.  Copley,  10  X.  Y.  95. 

5  McEwen  v.  Bigelow,  40  Mich.  217. 


COMPETENCY  OF  EXPERT  WITNESSES.  27 

be  borne  in  mind  on  such  preliminary  examinations,  that 
while  there  are  various  grades  of  experts,  it  is  not  consid- 
ered necessary  that  the  witness  should  possess  the  highest 
degree  of  skill  to  qualify  him  to  testify  in  the  character  of 
an  expert.1  But  his  peculiar  skill,  knowledge,  or  expe- 
rience should  have  been  acquired  by  him  in  some  trade  or 
profession.2 

§  19.  Xo  Exact  Test  for  Determining  Amount  of  Expe- 
rience Expert  should  Possess. —  "We  iind  no  test  laid 
•down,"  says  the  Supreme  Court  of  Indiana,  "  by  which  we 
can  determine  with  mathematical  precision,  just  how  much 
experience  a  witness  must  have  had,  how  expert,  in  short, 
he  must  bo,  to  render  him  competent  to  testify  as  an  ex- 
pert." 3  But  it  is  for  the  court  to  decide  within  the  limits 
of  a  fair  discretion  whether  the  experience  of  the  supposed 
expert  has  been  such  as  to  make  his  opinions  of  any  value.4 
Mere  opportunities  for  special  observation  are  not  sufficient 
to  render  a  witness  competent  to  testify  as  an  expert.  For 
example,  a  painter  by  trade  who  had  worked  at  his  calling 
for  twenty  years,  and  who  swore  that  his  experience  as  a 
painter  had  enabled  him  to  judge  of  the  quality  and  char- 
acter of  carpenter  work  and  material,  was  held  incompetent 
to  testify  as  an  expert  respecting  the  workmanlike  manner 
in  which  the  carpenter  and  joiner  work  was  done  upon  a 
house  on  which  he  did  the  painting.5  So  a  miller  is  not  a 

1  Yutes  v.  Yates.  76  X.  U.  142,  149;  Hyde  v.  Woolfolk,  1  Iowa,  159, 
1GG;  State  v.  Hinkle,  6  Iowa,  159, 166. 

*  Lincoln  v.  Inhabitants  of  Barre,  5  Cash.  591. 

8  Forgery  v.  First  National  Bank,  66  Intl.  123, 125. 

•«  McEweu  v.  Bigelow.  40  Mich.  215,  217. 

6  Kilbourne  v.  Jennings,  38  Iowa,  533.  "  A  painter,  in  virtue  of  the 
special  knowledge  and  skill  acquired  in  his  employment  of  painting,"' 
said  the  court,  "  could  learn  nothing  of  the  proper  mode  of  framing  to- 
gether materials  for  the  construction  of  a  building.  Whatever  knowl- 
edge lie  acquires  respecting  carpenter  and  joiner  work,  must  be  gained 
from  mere  observation  and  attention.  But  any  observant  man,  whose 
attention  has  been  specially  directed  to  buildings  in  process  of  erection 
and  erected,  could  have  equal  means  of  knowledge,  and  could  be  equally 
qualified  to  give  an  opinion.  But  the  opinion  of  a  witness  is  not  to  be 
received  merely  because  he  has  had  some  experience,  or  greater  oppor- 
tunity «>f  observation  than  others,  unless  the  experience  relates  to  mat- 


28  EXPERT  TESTIMONY. 

competent  witness  to  give  an  opinion  as  to  the  skillful  ness 
of  work  done  on  a  mill,  that  the  construction  of  its  ma- 
chinery was  improper,  although  a  millwright  would  be  a  com- 
petent witness  in  such  an  inquiry.1  And  where  the  investi- 
gation relates  to  the  quality  of  iron,  it  has  been  held  that  a 
witness  must  show  himself  to  be  skilled  in  the  business  of 
manufacturing  iron,  and  that  "  a  clerk  or  book-keeper,, 
although  he  may  have  been  long  employed  in  an  iron 
foundry,  and  may  have  seen  the  business,  is  not  competent 
to  testify  as  an  expert,  unless  he  shows  by  his  testimony 
that  he  has  given  the  subject  of  examining  and  testing  iron 
special  attention  and  study,  and  has  had  experience  in  that 
art.  If  it  appears  that  he  relies  upon  the  decision  of  others,, 
or  upon  the  marks  on  the  iron,  he  is  not  an  expert."  -  «,— 

§  20.   Competency  of   Experts  whose  Knowledge  is  de-        I 
rived  from  Study. — A  witness  is  not  incompetent  to  testify 
as  an  expert  by  reason  of  the  fact  that  his  special  knowledge    . 
of  the  particular  subject  of  inquiry,  has  not  been  derived     ^_ 
from  experience  or  actual  observation,  but  from  the  reading  3 — - 
and  study  of  standard  authorities.     We  are  not  to  under-   -^>- 
staiid,    however,    that   a   person    may   qualify    himself   to  ^ 
testify  as  an  expert  in  a  particular  case,  merely  by  devoting 
himself  to  the  study  of  authorities  for  the  purposes  of  that 
case,  when  such  reading  and  study  is  not  in  the  line  of  his- 
special  calling  or  profession,  and  is  entered  upon  to  enable 
him  to  testify  in  the  case.     A  lawyer  would  not  be  compe- 
tent to  express  an  opinion  on  a  question  of  medical  science,, 
from  information  which  he  might  acquire  from  reading  med- 
ical authorities  bearing  on  such  question.     Neither  would  a 
physician  be  qualified  to  express  an  opinion  on  a  question  of 

ters  of  skill  and  science.  It  is  true  the  witness  in  question  could  tell 
whether  a  joint  was  a  close  or  an  open  one.  And  any  observant  person,, 
without  special  instruction  or  skill  could  do  as  much.  But  it  is  apparent 
that,  to  admit  as  an  expert  every  person  who  had  availed  himself  of  an 
opportunity  to  observe  a  structure,  and  who  had  acquired  a  knowledge 
as  to  the  closeness  of  the  joints,  would  overturn  entirely  the  rule  re- 
specting expert  testimony." 

1  Walker  v.  Fields,  28  Ga.  237. 

2  Pope  v.  Filley,  9  Fed.  Rep.  65,  66. 


COMPETENCY  OF  EXPERT  WITNESSES.  29 

foreign  law,  from  information  which  he  might  acquire  by  an 
examination  of  legal  authorities.  While  the  opinion  of  either 
would  not  be  inadmissible  on  a  question  lying  within  the 
domain  of  their  particular  department  of  science,  merely 
because  such  opinion  was  based  on  information  acquired 
from  books.  In  the  English  case  of  (Jollier  v.  Simpson,1 
Mr.  Chief  Justice  Tindal  laid  down  the  doctrine,  that  an 
expert  could  be  asked  whether  in  the  course  of  his  reading 
Jie  had  found  so  and  so  laid, down,  and  that  his  judgment 
and  the  grounds  of  it  could  be  founded  in  some  degree  on 
books  as  a  part  of  his  general  knowledge.  And  the 
.authority  of  that  case  has  been  recognized  and  followed  in 
this  country.  The  Supreme  Court  of  New  Hampshire  has 
.held  that  a  physician  may  state  his  knowledge  of  a  particular 
subject  in  medical  science,  although  such  knowledge  was 
not  derived  from  experience  or  actual  observation,  but  from 
what  he  had  learned  merely  from  reading  and  studying 
medical  authorities;  and  that  upon  his  cross-examination, 
lie  may  be  asked,  whether  in  his  general  reading  he  has  not 
found  particular  theories  laid  down,  conflicting  with  the 
theory  he  had  advanced.2  So,  too,  in  North  Carolina  the 
•courts  have  said  that  medical  witnesses,  testifying  as  ex- 
perts, are  not  to  be  confined  to  the  expression  of  opinions 
derived  from  their  own  observation  and  experience,  but 
may  state  opinions  based  on  information  derived  from 
books.3  And  in  a  case  -recently  decided  in  the  Supreme 
Court  of  Georgia,  where  an  expert,  who  was  a  civil  engineer, 
stated  the  rules  for  the,  construction  of  cuts  and  embank- 
ments as  such  rules  are  found  in  standard  works  on 
engineering,  and  added:  "I  give  these  rules  solely  from 
what  I  recollect  of  the  books.  These  rules  are  found  in 
Mahan,  Gillespie  and  Gilmore,  and  many  others."  The 
court  held  that  "  the  expert  was  competent  to  testify. 
Every  expert  derives  much  of  his  knowledge  from  books  as 

1  5  Carr  &  Payne,  73  (24  Eng.  C.  L.  219.) 

2  State  v.  Wood,  53  N.  H.  484. 

3  Slate  v.  Ten-ill,  12  Rich.   (X.  C.)  321;   Melvin  v.  Easier,!  Jones 
XN.  C.)  Law,  388. 


30  EXPERT  TESTIMONY. 

well  as  from   experience,   and  can  give  his  opinion  based 
upon  the  knowledge  acquired  from  both  sources."1 

§  21.  Competency  of  Experts  whose  Knowledge  is  de- 
rived from  Study — The  Subject  Continued. — In  a  case 
decided  in  the  Supreme  Court  of  New  Hampshire  in  1870, 
the  law  as  to  the  qualifications  of  witnesses  without  practi- 
cal experience,  but  who  have  devoted  themselves  to  special 
study  and  reading  of  authorities,  was  laid  down  by  Mr.. 
Justice  Foster  with  such  force  and  clearnesss,  as  to  warrant 
its  repetition  in  this  connection,  notwithstanding  its  length. 
A  Mr.  Waite,  as  editor  of  a  stock  journal,  who  had  read 
extensively  on  the  subject  of  "  foot-rot,"  but  who  was  with- 
out practical  experience  as  to  the  treatment  of  the  disease, 
had  been  called  as  an  expert  on  the  question  whether  the 
"  foot-rot  "  is  ever  a  spontaneous  disease,  or  is  bred  only 
by  contact.  Mr.  Justice  Foster,  speaking  for  the  court, 
said  :  "  Mr.  Waite  had  no  skill  whatever,  'no  practical  ex- 
perience in  the  treatment  of  sheep  for  any  disease  ;'  that  he 
must  then  have  had  special  and  peculiar  knowledge  ;  that  he 
must  have  been  really  a  man  of  science,  in  order  to  be  qual- 
ified to  give  an  opinion,  would  seem  to  be  a  settled  and 
definite  rule  of  law.  The  extent  of  Mr.  Waite;s  qualification 
is  thus  described  :  «  As  editor  of  a  stock  journal,  he  had 
read  extensively  on  the  subject  of  foot-rot.'  The  object  of 
all  testimony  in  courts  is  to  place  before  the  jury  a  knowl- 
edge of  facts  pertaining  to  the  case  under  consideration,  and 
it  is  a  serious  departure  from  this  purpose  ever  to  admit, 
instead  of  actual  knowledge,  mere -opinion,  however  correct 
it  may  probably  be,  and  therefore,  opinion,  if  admitted  at 
all,  should  be  as  nearly  approximated  as  possible  to  the 
actual  knowledge  of  fact  for  which  it  is  substituted  ;  and  it 
should  always  be  required  of  an  expert,  that  he  should,  at 
least,  be  sufficiently  acquainted  with  the  subject  matter  of 
his  testimony  to  know  what  its  laws  are,  and  not  merely  to 
conjecture  or  to  have  an  idea  about  it.  That  is,  he  should 
be  really  a  man  of  science.  The  science,  (especially  in  the 

1  Central  R.  R.  Co.  v.  Mitchell,  63  Ga.  173;  s.  c.  I  Am.  &  Eng.  R.  R. 
Cases,  145. 


COMPETENCY  OF  EXPERT  WITNESSES.  31 

absence  of  skill,)  which  an  expert  should  be  required  to- 
possess  and  employ  on  a  given  subject,  implies  that  special 
and  peculiar  knowledge  acquired  only  by  a  course  of  obser- 
vation and  study,  and  the  expenditure  of  time,  labor  and. 
preparation,  in  a  particular  employment  and  calling  of  life. 
The  matter  of  our  present  consideration  is  of  vast  import- 
ance. « In  the  multiplication  of  interests  connected  with  the 
application  of  the  laws  of  science,  which  are  daily  growing 
more  and  more  numerous  and  refined,  it  is  hardly  possible 
to  dispense  with  the  aid  of  experts  in  determining  the  rights 
of  parties  ;'  but  it  is  greatly  to  be  feared  that  an  unwise 
generosity  and  liberality  of  construction  have  sometimes 
permitted  the  admission  of  this  kind  of  evidence  to  an  extent 
outside  the  bounds  of  discretion  and  safety,  and  that  perhaps 
a  more  scrupulous  regard  for  and  estimation  of  the  great  im- 
portance of  the  office  of  an  expert  in  the  ascertainment  of 
truth,  than  has  sometimes  been  exercised,  has  become  neces- 
sary, not  only  for  the  vindication  of  justice  itself,  but  also  for 
strengthening  the  confidence  of  the  public  in  its  ministers 
and  instrumentalities. 

"  We  admit  the  .wisdom  of  the  rule  which,  permitting  a 
man  of  genuine  science  to  give  as  his  opinion  the  results  of 
study  and  research  into  books  of  acknowledged  authority,, 
yet  will  not  allow  such  books  to  be  read  in  court  to  the  jury. 
The  rule  is  founded  partly  in  the  delay  which  would  thus  be 
occasioned  to  the  business  of  courts,  and  partly  in  the  idea 
that  it  is  safer,  on  the  whole,  to  trust  to  the  judgment  of 
learned  men,  acquired  by  study,  observation  and  skill, 
than  to  the  imperfect  deductions  of  jurors,  hastily  de- 
rived from  readings  not  familiar  to  them,  unassisted  by 
study,  examination  and  comparison  of  kindred  subjects 
(though  we  must  confess  that,  in  a  particular  case  we 
may  have  little  doubt  that  a  page  from  Youatt  or  Morrell 
would  be  a  safer  guide  for  the  jury  than  the  opinion 
of  such  a  witness  as  Mr.  Waite).  But  so  long  as  the  opin- 
ions of  the  most  distinguished  and  most  learned  authors  in 
the  world,  expressed  through  the  direct  and  pure  media  of 
their  celebrated  works,  are  thus  excluded  from  the  juryr 


-32  EXPERT  TESTIMONY. 

surely  it  can  be  neither  wise  nor  prudent  to  admit  opinions 
•uiisustained  by  the  slightest  experience  or  even  observation, 
"the  deductions  of  readings  at  best  scanty  and  superficial, 
.-because  not  pertaining  to  the  special  study  and  business  of 
the  reader.  *  *  * 

"  Of  course,  it  must  be  admitted  that  the  testimony  of 
3uio wledge  and  opinion,  obtained  from  mere  reading,  with- 
out study,  reflection,  or  observation,  is  no  more  than  a  rela- 
tion by  the  witness  of  that  which  the  policy  of  the  law 
-excludes,  namely,  the  books  themselves  which  the  witness 
Jias  read. 

"  The  limit  of  safety  in  this  direction  is  reached,  it  would 
seem,  when  we  admit,  as  the  practice  in  this  State  is,  the 
•opinions  of  medical  men,  for  instance,  with  regard  to  a  dis- 
ease which  in  actual  practice  they  may  not  have  treated, 
but  concerning  which  the  science  and  skill  of  long  experi- 
ence in  the  affinities  and  analogies  of  the  subject  have  pre- 
pared them  to  speak  with  confidence,  from  a  knowledge  of 
the  rules  and  laws  governing  the  special  subject  of  in- 
•quiry.  *  * 

"  And  so  the  practice  in  this  State  permits  the  skilled  prac- 
titioner, who  has  made  himself  familiar  with  the  science  of 
medicine  or  surgery  by  a  long  course  of  study  and  practical 
experience  with  kindred  subjects,  to  testify  as  an  expert ; 
;and  common  sense  demands  that  such  a  man  shall  have  re- 
spect given  to  his  opinion,  though  he  may  have  had  no  prac- 
tical experience  in  a  particular  case. 

' '  But  how  is  it  in  the  case  of  this  witness  ?  He  was  not  a  vet- 
•erinarian,  nor  any  other  kind  of  a  physician  or  surgeon.  'He 
had  had  no  practical  experience  in  the  treatment  of  sheep,' 
nor  of  any  person  or  thing  '  for  any  disease.'  He  was  the 
•editor  of  a  newspaper,  devoted,  not  to  the  special  considera- 
tion of  this,  nor  even  of  kindred  subjects,  but  embracing 
the  very  large  class  of  matters  ordinarily  included  in  a  stock 
journal.  His  newspaper  was,  probably,  the  ordinary  col- 
lection of  miscellaneous  literature  and  news  items,  concern- 
ing all  the  diverse  matters  embraced  within  the  range  of 


COMPETENCY  OF  EXPERT  WITNESSES.  3$ 

such  a  production,  its  editor  having  and  making  no  preten- 
sion to  veterinary  skill  and  practice. 

"  It  being  evident,  too,  that  in  the  line  of  his  comprehen- 
sive reading  and  study  the  subject  of  the  diseases  of  animals 
was  by  no  means  a  specialty,  the  element  of  editorship  has 
in  reality  nothing  to  do  with  the  party's  qualifications. 
'As  an  editor,'  it  is  said  '  he  had  read  extensively  on  the 
subject  of  foot-rot.'  So,  as  a  lawyer,  prosecuting  or  defend- 
ing a  man  charged  with  murder,  I,  who  am  not  a  doctor,, 
may  have  read  extensively  on  the  subject  of  the  effects  of 
strychnine  and  its  manifestations  after  death,  and,  as  the 
result  of  my  reading,  I  might  well  form  the  opinion  that 
enough  of  strychnine  might  be  administered  to  cause  death, 
without  a  possibility  that  a  medical  man  or  chemist  could 
be  able  to  detect  it  in  the  stomach  or  blood  of  the  deceased  ; 
but,  it  is  to  be  hoped,  my  opinion  upon  this  subject  would 
not  be  allowed.  And,  as  a  lawyer,  also,  in  the  examination 
of  this  case,  I  have,  in  fact,  read  extensively  on  the  subject 
of  foot-rot,  the  books  of  Morrell,  Youatt  and  Clock.  *  *  * 

"  As  the  result  of  my  reading,  I  should,  perhaps,  be  in- 
clined to  believe  the  disease  is  not  contagious,  but  my  opin- 
ion is  no  more  admissible  than  the  books  themselves  of 
these  authors.  They  are  men  of  acknowledged  science  and 
skill.  The  witness  in  this  case  can  have  examined  no  better 
authority.  Why  should  his  opinion,  without  practical  skill 
and  experience,  be  received,  and  theirs  rejected? 

"  In  view  of  all  these  considerations,  and  of  the  evidence 
reported  by  the  case  submitted  to  us,  we  are  strongly  of  the 
opinion  that  the  witness,  having  confessedly  no  veterinary 
skill  nor  practice,  having  also  no  professional  education, 
not  being  in  any  true  sense  a  man  of  science,  because  not 
instructed  and  prepared  by  a  long  course  of  habit  of  study 
concerning  the  diseases  of  domestic  animals,  did  not  pos- 
sess the  legal  qualifications  of  an  expert."  1 

§  22.  Competency  Sometimes  Dependent  on  whether 
the  Expert  has  Heard  the  Testimony. —  An  expert  either 

1  Dole  v.  Johnson,  50  N.  H.  452,  455. 
(3) 


34  EXPERT  TESTIMONY. 

states  general  facts,  which  are  the  results  of  scientific 
knowledge  or  general  skill,  or  else  he  testifies  to  opinions.1 
If  he  testifies  to  opinions,  his  testimony  is  founded  either  on 
personal  knowledge  of  the  facts,  or  else  it  is  based  on  facts 
shown  by  the  testimony  of  others.2  If  his  opinion  is  de- 
sired on  facts  testified  to  by  other  witnesses,  it  should  ap- 
pear that  he  has  reliable  information  or  knowledge  of  what 
those  facts  are.3  But  even  in  such  cases  it  is  not  always 
necessary  that  the  witness  should  have  been  present,  and 
heard  all  the  evidence.4 

It  is  sufficient  if  it  appears  that  he  has  heard  all  the  testi- 
mony which  is  material  to  the  subject  of  inquiry.5  And  he 
should  have  heard  the  evidence  as  actually  given,  and  not 
as  it  appears  on  the  minutes  of  the  testimony  as  taken  by 
counsel.  When  an  expert  had  not  heard  the  evidence  as 
given  on  the  trial,  and  counsel  offered  to  read  to  him  their 
minutes  of  the  testimony,  it  was  held  that  this  could  not  be 
allowed.6  Of  course  the  necessity  for  the  witness  to  have 
heard  the  testimony  does  not  exist  if  the  whole  of  the  evi- 
dence is  embraced  in  a  hypothetical  question  submitted  to 
Mm.7 

§  23.  Competency  of  Experts  in  Particular  Cases. — \Ve 
have  thus  confined  our  attention  to  the  general  principles 
relating  to  the  competency  of  experts,  and  have  left  the 
consideration  of  the  competency  of  experts  in  particular 
cases  to  be  considered  in  subsequent  chapters.  For  instance, 
the  competency  of  physicians  and  surgeons  to  testify  as  ex- 

1  Emerson  v.  Lowell  Gas  Light  Co.,  6  Allen,  146. 

!  Spear  v.  Richardson,  37  X.  H.  23,  34;  Livingston  v.  Commonwealth, 
14  Gratt.  (Va.)  592;  Walker  v.  Fields,  28  Ga.  237. 

*Heald  v.  Thing,  45  Me.  392;  Lake  r.  People.  12  X.  Y.  358;  s.  c.,  1 
Parker  Cr.  Cas.  495;  People  v.  Thurston,  2  Parker  Cr.  Cas.  49. 

*  Miller  v.  Smith,  112  Mass,  470,  475. 

*  Carpenter  v.  Blake,  2  Lans.  (X.  Y.)  206;  State  v.  Medlicott,  9  Kans. 
289;  Rich  v.  Jones,  S  Cash.  (Mass.)  337;  Hand  v.  Brookliue,  126  (Mass.) 
324;  Davis  v.  State,  38  Md.  15,  40;  State  v.  Hayden,  51  Vt.  296. 

«  Thayer  T.  Davis,  38  Vt.  163. 

7  See  Webb  v.  State,  9  Texas  Ct.  of  App.  490. 


COMPETENCY  OF  EXPERT  WITNESSES.  35 

perts,  is  considered  in  the  chapter  relating  to  expert  testi- 
mony in  medicine,  surgery  and  chemistry.  So  the  qualifi- 
tions  of  experts  in  handwriting  have  been  considered  in  the 
chapter  relating  to  expert  testimony  in  handwriting. 


36  EXPERT  TESTIMONY. 


CHAPTER  III. 


THE    EXAMINATION    OF    EXPERT   WITNESSES,    AND    THE 
WEIGHT  OF  THEIR  TESTIMONY. 

SECTION. 

24.  Mode  of  Examination  of  Expert  Witnesses. 

25.  The  Hypothetical  Question. 

26.  The  Hypothetical  Question— The  Subje«t  Continued. 

27.  When  Questions  need  not  be  Hypothetical. 

28.  The  Hypothetical  Question  on  the  Cross-examination. 

29.  Questions  to  Experts  should  not  embrace  Questions  of  Law. 

30.  Questions  to  Experts  as  to  Particular  Cases. 

31.  An  Expert  cannot  be  asked  for  an  Opinion  on  Facts  not  Stated. 

32.  Latitude  of  Inquiry  in  the  Examination  of  Experts. 

33.  Some  General  Kules  Governing  the  Examination  of  Witnesses. 

34.  Excluding  Experts  from  the  Court  Room  during  the  Examination 

of  Witnesses. 

35.  Right  of  the  Court  to  Limit  the  Number  of  Expert  Witnesses. 

36.  By  whom  Expert  Witnesses  are  Selected. 

37.  Weight  of  Expert  Testimony  a  Question  for  the  Jury. 

38.  Right  of  the  Jury  to  Exercise  an  Independent  Judgment. 

39.  Instructions  to  the  Jury  as  to  the  Nature  and  Weight  of  Expert 

Testimony. 

40.  Instructions  to  the  Jury  as  to  the  Nature  and  Weight  of  Expert 

Testimony— The  Subject  Continued. 

41.  Instructions  to  the  Jury  as  to  the  Nature  and  Weight  of  Expert 

Testimony— The  Subject  Continued. 

42.  The  Value  of  Expert  Testimony. 

§   24.  Mode  of  Examination  of  Expert  Witnesses. — It 

being  determined  by  the  court,  that  the  subject  matter  of 
inquiry  is  one  upon  which  the  opinion  of  experts  may  prop- 
erly be  received  in  evidence,  and  that  the  witness  introduced 
possesses  special  skill  in  the  subject  matter  of  inquiry,  the 


EXAMINATION  OF  EXPERT  WITNESSES.  37 

examination  of  the  witness  is  next  in  order,  and  it  becomes 
important  that  such  examination  should  proceed  strictly  in 
accordance  with  the  rules,  which  it  has  been  found  necessary 
to  establish  in  relation  to  the  admission  of  expert  testimony. 
It  is  necessary  in  the  examination  of  all  such  witnesses, 
that  questions  should  be  so  framed  as  not  to  call  on  the 
witness  for  a  critical  review  of  the  testimony  given  by  the 
other  witnesses,  compelling  the  expert  to  draw  inferences 
or  conclusions  of  fact  from  the  testimony,  or  to  pass  on 
the  credibility  of  the  witnesses,1  the  general  rule  being 
that  an  expert  should  not  be  asked  a  question  in  such  a 
manner  as  to  cover  the  very  question  to  be  submitted  to  the 
jury.2  As  expressed  in  one  of  the  opinions,  "  a  question 
should  not  be  so  framed  as  to  permit  the  witness  to  roam 
through  the  evidence  for  himself,  and  gather  the  facts  as  he 
may  consider  them  to  be  proved,  and  then  state  his  conclu- 
sions concerning  them."3  And  the  language  in  another 
case  is  as  follows:  "The  questions  to  him  must  be  so 
shaped  as  to  give  him  no  occasion  to  mentally  draw  his  own 
conclusions  from  the  whole  evidence,  or  a  part  thereof,  and 
from  the  conclusion  so  drawn,  express  his  opinion,  or  to 
decide  as  to  the  weight  of  evidence  or  the  credibility  of 
witnesses  ;  and  his  answers  must  be  such,  as  not  to  involve 

J  Jameson  v.  Drinkald,  12  Moore,  148;  Guiterman  v.  LiTerpool  etc. 
Steamship  Co.,  83  N.  Y.  358,  366;  United  States  v.  MeGloin,  1  Curtis  C. 
C.  1,  9;  Buxton  v.  Somerset  Potters  Works,  121  Mass.  446;  Reynolds  v. 
Robinson,  64  N.  Y.  589;  Phillips  v.  Starr,  26  Iowa,  351;  Van  Zandt  v. 
Mutual  Benefit  Life  Ins.  Ce.,  55  N.  Y.  179;  Dexter  v.  Hall,  15  Wall.  9; 
Cincinnati  etc.  Mutual  Ins.  Co.  v.  May,  20  Ohio,  211,  224;  Rush  v.Megee, 
36  Ind.  1.  '-Le  Medicin  ne  doit  jamais  donner  un  avis  sur  le  difficult^ 
meme,  que  les  juris  ont  a  resoudre;  par  exemple,  sur  le  point  de  savoir 
si  1'accuse  est  irresponsable,  niais  simplement  faire  connaitre  son  opinion 
sur  T  existence  ou  le  degnS  d'influence  de  certain  faits."  Dr.  Mitter- 
maier's  Trait«5  de  la  Procedure  Criminelle. 

2  Chicago  &  Alton  R.  R.  Co.  v.  Springfield  &  Northwestern  R.  R.  Co., 
67  111.  142;  Tingley  v.  Cowgill,  48  Mo.  294;  Muldowney  v.  Illinois 
Central  R.  R.  Co.,  39  Iowa,  615;  Pelamourges  v.  Clark,  9  Iowa,  1.  16; 
Hill  v.  Portland  etc.  R.  R.  Co.,  55  Me.  444;  Keller  v.  N.  Y.  Central  R. 
R.  Co.,  2  Abbott's  App.  Decis.  (X.  Y.)  480,  490;  Clark  v.  Detroit  Loco- 
motive Works,  32  Mich.  348. 

8  Dolz  v.  Morris,  17  N.  Y.  Sup.  Ct.  202. 


38  EXPERT  TESTIMONY. 

any  such  conclusions  so  drawn,  or  any  opinion  of  the  expert, 
as  to  the  weight  of  the  evidence  or  the  credibility  of  the 
witnesses."1  "The  object  of  all  questions  to  experts," 
says  the  Supreme  Court  of  Massachusetts,  "  should  be  to 
obtain  their  opinion  as  to  the  matter  of  skill  or  science 
which  is  in  controversy,  and  at  the  same  time  to  exclude 
their  opinions  as  to  the  effect  of  the  evidence  in  establishing 
controverted  facts.  Questions  adapted  to  this  end  may  be 
in. a  great  variety  of  forms.  If  they  require  the  witness  to 
draw  a  conclusion  of  fact,  they  should  be  excluded."2  It 
is  not  the  duty  of  an  expert  to  reconcile  conflicting  evi- 
dence.3 In  illustration  of  this  principle  that  an  expert  can- 
not be  asked  an  opinion  which  requires  him  to  pass  upon 
the  evidence,  the  following  question  may  be  cited  as  having 
been  held  to  be  an  improper  one,  for  the  reason  that  it 
practically  put  the  expert  in  the  place  of  the  jury  :  "  From 
the  facts  and  circumstances  stated  by  previous  witnesses, 
and  from  those  testified  to  by  still  other  witnesses,  relating 
to  the  homicide,  and  from  defendant's  conduct  on  the  trial, 
is  it  your  opinion  that  the  defendant  was  sane  or  insane 
when  he  committed  the  act?"4  For  the  same  reason  an 
engineer  has  not  been  allowed  to  answer  the  question 
whether  "the  plaintiff  in  oiling  that  pulley,  could  have  been 
injured  unless  he  was  careless."  5  So  it  has  been  held  im- 
proper to  ask  :  "In  your  opinion  as  a  canal  boatman,  did 
Mr.  C.  in  any  way  omit  or  neglect  to  do  anything  which  he 
might  have  done  to  save  his  boat?"  He  could  be  asked 
whether  certain  acts  assumed  to  be  proven  were  seamanlike 
and  proper,  but  he  could  not  be  allowed  to  express  an 
opinion  as  to  what  was  or  was  not  done  as  a  matter  of  fact/' 
And  in  an  action  against  a  physician  for  neglect  and  non- 
attendance  in  a  case  of  frost  bite,  it  has  been  held  that  A 


1  McMechen  v.  McMechen,  17  W.  Va.  683,  694. 

2  Hunt  v.  Lowell  Gas  Light  Co.,  8  Gray,  169. 

3  Liming  v.  State,  1  Chandler,  (Wis.)  178. 
*  State  v.  Felter,  25  Iowa,  67,  74. 

5  Buxton  v.  Somerset  Potters  Works,  124  Mass.  446. 

«  Carpenter  v.  Eastern  Transportation  Co.,  71  N.  Y.  574. 


EXAMINATION  OF  EXPERT  WITNESSES.  39 

medical  witness,  to  whom  the  evidence  was  read,  could  not 
be  asked  :  From  the  evidence  before  the  court,  to  what  do 
you  ascribe  the  loss  of  the  plaintiff's  fingers  and  toes?1 

§  25.  The  Hypothetical  Question. —  As  an  expert  is  not 
allowed  to  draw  inferences  or  conclusions  of  fact  from  the 
evidence,  his  opinion  should  be  asked  upon  a  hypothetical 
statement  of  facts.2  Mr.  Chief  Justice  SHAW  well  stated 
the  law  as  follows:  "  In  order  to  obtain  the  opinion  of  a 
witness  on  matters  not  depending  upon  general  knowledge, 
but  on  facts  not  testified  of  by  himself,  one  of  two  modes 
is  pursued :  either  the  witness  is  present  and  hears  all  the 
testimony,  or  the  testimony  is  summed  up  in  the  question 
put  to  him ;  and  in  either  case  the  question  is  put  to  him 
hypothetically,  whether,  if  certain  facts  testified  of  are  true 
he  can  form  an  opinion,  and  what  that  opinion  is."  3 
-  Counsel  in  framing  the  hypothetical  question,  may  base 
it  upon  the  hypothesis  of  the  truth  of  all  the  evidence,  or 
on  a  hypothesis  especially  framed  on  certain  facts  assumed 
to  be  proved  for  the  purpose  of  the  inquiry.4  If  framed  on 
the  assumption  of  certain  facts,  counsel  may  assume  the 
facts  in  accordance  with  his  theory  of  them,  it  not  being 
essential  that  he  should  state  the  facts  as  they  actually 
exist.3 

"  The  claim  is,"  says  Chief  Justice  FOLGER,  in  the  case 
last  cited,  "  that  a  hypothetical  question  may  not  be  put  to 


1  Key  v.  Thompson,  2  Han  nay,  (X.  B.)  224. 

2  Strong  v.  Kean,  13  Irish  Law  R.  93;  Polk  v.  State,  36  Ark.  117, 124. 
125;    Spear  v.   Richardson,  37  X.   II.  23;    Teft  v.  Wilcox,  6  Kan.  46; 
Pidcock  v.  Potter.  68  Pa.  St.  342 ;  Woodbury  v.  Obear.  7  Gray  (Mass.) , 
467;  Williams  v.  Brown,  28  Ohio  St.  547,  551;   Moore  v.  State,  17  Ohio 
St.  526;  Jerry  v.Townshend.  9  Md.  145;  Baltimore  &  Ohio  Railroad  Co. 
v.  Thompson,  10  Md.  76;  Walker  v.  Rogers,  24  Md.  237;  Page  v.  State. 
61  Ala.  16;  Willey  v.  Portsmouth,  35  N.  H.  303;  Bishop  v.  Spining,  38 
Ind.  143;  Dexter  v.  Hall,  15  Wallace,  9;  Ayers  v.  Water  Commissioners. 
29  X.  Y.  Sup.  Ct.  297;  Guiterman  v.  Liverpool,  etc.  Steamship  Co.,  83 
X.  Y.  358,  366;  Hunt  v.  State,  9  Tex.  Ct.  of  App.  166;  Hoard  v.  Peck,  56 
Barb.  (X.  Y.)  202;  City  of  Decatnr  v.  Fisher,  63  111.  241. 

3  Dickenson  v.  Fitchburg,  13  Gray,  (Mass.)  546,  556. 
<  Gotlieb  v.  Hartman,  3  Col.  53. 

5  Cowley  v.  People,  83  N.  Y.  461. 


40  EXPERT  TESTIMONY. 

an  expert,  unless  it  states  the  facts  as  they  exist.  It  is  man- 
ifest, if  this  is  the  rule,  that  in  a  trial  where  there  is  a  dis- 
pute as  to  the  facts,  which  can  be  settled  only  by  the  jury, 
there  would  be  no  room  for  a  hypothetical  question.  The 
very  meaning  of  the  word  is  that  it  supposes,  assumes 
something  for  the  time  being.  Each  side,  in  an  issue  of 
fact,  has  its  theory  of  what  is  the  true  state  of  the  facts, 
and  assumes  that  it  can  prove  it  to  be  so  to  the  satisfaction 
of  the  jury,  and  so  assuming,  shapes  hypothetical  questions 
to  experts  accordingly.  And  such  is  the  correct  practice."  1 
The  fact  that  counsel  make  an  error  in  their  assumption, 
does  not  render  the  question  objectionable,  if  it  is  within  the 
possible  or  probable  range  of  the  evidence.2  But  the  testi- 
mony should  tend  to  establish  every  supposed  fact  embraced 
in  the  question.3  For  if  the  hypothetical  question  is  clearly 
exaggerated  and  unwarranted  by  any  testimony  in  the  case, 
an  objection  to  it  will  be  sustained.4  As  declared  in  the 
Supreme  Court  of  Michigan,  counsel  should  not  be,  per- 
mitted to  embrace  in  a  hypothetical  question  "  anything  not 
proved  or  offered  to  be  proved."  5  And  if  it  turns  out  that 
the  question  includes  circumstances  which  are  neither 
proved,  nor  as  to  which  there  is  any  tendency  of  proof, 
then  the  court  is  to  instruct  the  jury  to  disregard  the  opin- 
ion based  upon  it.6  But  where  there  is  any  evidence  tend- 
ing to  prove  the  facts  assumed,  it  is  for  the  jury  to  weigh 


1  See  to  the  same  effect  Davis  v.  State,  35  Ind.  496;  Guetigv.  State,  66 
Ind94;    Filer  v.  N.  Y.  Central  K.  R.  Co.,  49  N.  Y.  42;  Carpenter  v. 
Blake,  2  Lans.  (N.  Y.)  206. 

2  Harnett  v.  Garvey,  66  N.  Y.  641 ;  Nave  v.  Tucker,  70  Ind.  15. 

3  Bouigardner  v.  Andrews,  55  Iowa,  638 ;  Hathaway 's  Admr.  r.  National 
Life  Ins.  Co..  48  Vt.  335;  Hurst  v.  The  C.  R.  I.  &.  P.  R.  Co.,  49  Iowa, 
76;  Gueting  v.  State,  66  Ind.  94;  Daniells  v.  Aldrich,  42  Mich.  58;  Dil- 
lebar  v.  Home  Life  Ins.  Co.  (N.  Y.  Ct.  of  App.,  Nov.  1881),  14  Cent.  L. 
J.  158. 

«  Williams  v.  Brown,  28  Ohio  St.  547,  551,  552;  Muldowuey  v.  Illinois 
Central  R.  R.  Co.,  39  Iowa,  615;  Dickie  v.  Vanbleck,  5  Redf.  (N.  Y.) 
284,  294. 

«  Fraser  v.  Jennison,  42  Mich.  206,  227. 

6  CommoHwealth  v.  Mullins,  2  Allen  (Mass.), 296;  Gueting  v.  State,  60 
Ind.  94;  Hovey  v.  Chase,  52  Me.  304. 


EXAMINATION  OF  EXPERT  WITNESSES.  41 

the  evidence,  and  determine  whether  the  supposed  facts  so 
stated  actually  correspond  with  the  facts  as  proved.1  The 
opinion  of  an  expert  cannot  be  considered  of  material  value, 
unless  the  hypothetical  case  put  to  him  is  fully  sustained  by 
the  evidence  ;  but  an  exception  to  the  rule  arises  where  the 
hypothetical  case  is  susceptible  of  division,  and  a  part  of  it 
only  is  sustained  by  the  evidence.2  In  putting  the  hypo- 
thetical case  the  facts  of  the  actual  case  should  be  fairly 
represented.3 

§  2G.  The  Hypothetical  Question  —  The  Subject  Con- 
tinued.— Tt  is  to  be  noted,  however,  that  if  there  is  no 
dispute  as  to  the  facts  on  which  the  expert  is  to  base  his 
opinion,  it  is  proper  to  require  that  the  question  to  the 
expert  shall  embrace  all  the  facts,  and  that  the  witness  shall 
take  them  all  into  consideration.4  The  doctrine  as  to  the 
proper  form  of  the  hypothetical  question,  has  been  very 
ably  set  forth  by  the  Supreme  Court  of  Vermont  in  an 
opinion,  from  which  we  quote  as  follows  :  "A  study  of  the 
various  cases  will  show  that  the  form  of  the  question  is 
modified  and  shaped  by  the  courts  ;  whether  it  states  facts, 
or  puts  facts  hypotheticallv,  or  refers  to  the  testimony  of 
witnesses  as  being  true,  so  as  to  give  the  witness  no  occasion 
or  opportunity  to  decide  upon  the  evidence,  or  mingle  his 
own  opinion  of  the  facts,  as  shown  by  the  evidence,  with 
the  facts  upon  which  he  is  to  express  a  professional  opinion. 
This  is  the  important  point,  and  to  secure  this,  various 
forms  of  inquiry  have  been  adopted.  Hypothetical  ques- 
tions may  be  so  put  as  to  require  the  witness  to  decide  upon 
the  evidence,  to  determine  which  side  preponderates,  and  to 
h'nd  conclusions  from  the  evidence,  in  order  to  reconcile 
connicting  facts.  Such  questions,  though  hypothetical,  are 
as  clearly  improper  as  if  they  direct!}'  sought  the  opinion 
of  the  witness  on  the  merits  of  the  case.  Hence,  in  framing 

1  Boardman  v.  Woodman,  47  X.  II.  120,  135;  Lake  v.  People,  1  Par- 
ker's Cr.  Cas.  495;  People  v.  Thurston.  2  Parker's  Cr.  Cue.  49. 

2  Eggers  v.  Eggers,  57  Ind.  461. 

3  Stuart  v.  State,  57  Tenn.  178.  189. 
^  Davis  v.  State.  35  Ind.  496. 


42  EXPERT  TESIMTONY. 

such  questions,  care  should  be  taken  not  to  involve  so  much, 
or  so  many  facts  in  them,  that  the  witness  will  be  obliged 
in  his  own  mind  to  settle  other  disputed  facts,  in  order  to 
give  his  answer.  *  l  In  some  cases,  all  the  facts  bearimr 
on  the  issue  might  be  summed  up  in  a  single  question.  But 
when  facts  on  one  side  conflict  with  facts  on  the  other,  they 
ought  not  to  be  incorporated  into  one  question,  but  the 
attention  of  the  witness  should  be  called  to  their  opposing" 
tendencies,  and  if  his  skill  or  knowledge  can  furnish  the 
explanation  which  harmonizes  them,  he  is  at  liberty  to  state 
it.  Then  the  jury  can  know  all  the  facts  and  grounds  on 
which  the  opinion  is  based."1  It  is  not  always  necessary 
that  a  hypothetical  question  should  be  asked  in  a  formal 
manner.  Where  a  medical  expert  had  read  the  deposition 
of  the  plaintiff,  detailing  minutely  the  injuries  and  bodily 
condition  claimed  to  have  resulted  to  him  from  an  injury 
which  he  related,  it  was  held  proper  to  ask  him  "  from  the 
knowledge  gained  by  reading  the  deposition,"  his  opinion 
as  to  the  plaintiff's  condition  at  the  time  the  deposition  was 
made,  and  as  to  the  cause  of  that  condition.  The  court 
said  that  where  an  expert  heard  or  read  the  evidence,  there 
was  no  reason  why  he  might  not  form  as  correct  a  judg- 
ment based  upon  such  evidence,  assuming  it  to  be  true,  as 
if  the  same  evidence  had  been  submitted  to  him  in  the  form 
of  hypothetical  questions,  and  that  it  would  be  an  idle  and 
useless  ceremony  to  require  evidence  with  which  he  was 
already  familiar,  to  be  repeated  to  him  in  that  form.2  It 
has  been  held  proper  to  ask  the  expert,  "  supposing  the 
testimony  of  the  witness  to  be  truthful,"  what  is  your 
opinion  ? 3  This  is  said  to  be  a  convenient  mode  of  stating 
a  hypothetical  case,  permissible  in  the  discretion  of  the 
court.4  In  a  recent  case  in  Texas,  where  the  opinion  of  an 
expert  was  asked  on  the  testimony  of  one  of  the  witnesses, 

1  Fairchild  v.  Bascomb,  35  Vt.  415. 

2  Oilman  v.  Town  of  Strafford,  50  Vt.  726. 

3  Wright  v.  Hardy,  22  \Vis.  348.     But  see  Hagadorn  v.  Connecticut 
Mutual  Life  Ins.  Co.,  29  N.  Y.  Sup.  Ct.  251. 

4  State  v.  Lautenschlager,  22  Minn.  521 ;  Getehell  v.  Hill,  21  Minn.  464. 


EXAMINATION  OF  EXPERT  WITNESSES.  4& 

the  Court  of  Appeals  declared  that  an  opinion  could  not  be 
predicated  on  anything  less  than  the  entire  testimony, 
whether  actually  or  hypothetically  presented.1  And  it  ha& 
been  said  that  the  advantage  of  the  usual  hypothetical 
question,  including  the  substance  of  the  whole  testimony  r 
is  so  great,  that  it  should  only  be  sacrificed  when  the  cir- 
cumstances of  the  case  plainly  call  for  it.2  The  hypothesis 
should  be  clearly  stated,  so  that  the  jury  may  know  with 
certainty  upon  precisely  what  state  of  facts  the  expert  bases 
his  opinion.3  We  give  in  the  note  below  an  illustration  of 
the  hypothetical  question,  the  question  being  the  one  pro- 
pounded by  the  defence  to  the  experts  in  the  trial  of 
Guiteau,4  that  propounded  by  the  prosecution  in  the  same 
case,  being  of  too  great  length  to  permit  of  its  reproduction 
in  these  pages. 

§   27.    When    Questions  need    not   be    Hypothetical. — 
There  are  two  exceptions  to  the  general  rule  requiring  that 

1  Webb  v.  State,  9  Texas  Ct.  of  App.  490. 

2  Haggerty  v.  Brooklyn  etc.  R.  R.  Co.,  61  N.  Y.  624. 

3  McMechen  v.  McMechen,  17  W.  Va.  683,  698. 

4  Q.  Assuming  it  to  be  a  fact  that  there  was  a  strong  hereditary  taint 
of  insanity  in  the  blood  of  the  prisoner  at  the  bar;  also  that  at  about  the 
age  of  thirty-five  years  his  own  mind  was  so  much  deranged  that  he  was 
a  fit  subject  to  be  sent  to  an  insane  asylum;  also  that  at  different  times 
after  that  date  during  the  next  succeeding  five  years,  he  manifested  such 
decided  symptons  of  insanity,  without  simulation,  that  many  different 
persons  conversing  with  him  and  observing  his  conduct,  believed  him 
to  be  insane;  also  that  in  or  about  the  month  of  June,  1881,  at  or  about 
the  expiration  of  said  term  of  five  years,  he  became  demented  by  the 
idea  that  he  was  inspired  of  God  to  remove  by  death  the  President  of  the 
United  States;  also  that  he  acted  on  what  he  believed  to  be  such  inspira- 
tion, and  as  he  believed  to  be  in  accordance  with  the  Divine  will  in  the 
preparation  for.  and  in  the  accomplishment  of  such  a  purpose;  also  that 
he  committed  the  act  of  shooting  the  President  under  what  he  believed 
to  be  a  Divine  command  which  he  was  not  at  liberty  to  disobey,  and 
which  belief  made  out  a  conviction  which  controlled  his  conscience  and 
overpowered  his  will  as  to  that  act,  so  that  he  could  not  resist  the  mental 
pressure  upon  him :  also  that  immediately  after  the  shooting  he  appeared 
calm  and  as  if  relieved  by  the  performance  of  a  great  duty;  also  that 
there  was  no  other  adequate  motive  for  the  act  than  the  conviction  that 
he  was  executing  the  Divine  will  for  the  good  of  his  country— assuming 
all  of  these  propositions  to  be  true,  state  whether,  in  your  opinion,  the 
prisoner  was  sane  or  insane  at  the  time  of  shooting  President  Garfield  ? 


44  EXPERT  TESTIMONY. 

the  opinions  of  experts  should  be  asked  upon  an  assumed 
state  of  facts. 

First.  A  distinction  is  taken  between  cases  in  which  there 
as  a  conflict  of  evidence  upon  the  material  facts,  and  those 
in  which  no  such  conflict  exists.  In  the  former  class  of 
•eases  the  question  must  be  framed  hypothetical!}7",  but  in 
the  latter  class  there  is  no  such  necessity.1 

Second.  It  is  not  necessary  to  assume  a  state  of  facts  in 
those  cases  in  which  the  expert  is  personally  acquainted  with 
the  material  facts  in  the  case.2 

For  instance,  a  medical  witness  who  has  no  personal 
knowledge  of  the  prisoner,  cannot  be  asked  :  "  From  the 
facts  and  circumstances  stated  by  previous  witnesses,  and 
from  those  testified  to  by  still  other  witnesses,  relating  to 
the  homicide,  and  from  defendant's  conduct  on  the  trial,  is 
it  your  opinion  that  the  defendant  was  sane  or  insane  when 
he  committed  the  act?  *  *  *  But  if  a  physician  visits  a 
person,  and  from  actual  examination  or  observation  becomes 
acquainted  with  his  mental  condition,  he  may  give  an  opin- 
ion respecting  such  mental  condition  at  that  time  —  that  is, 
he  may,  under  such  circumstances,  state  to  the  jury  his 
opinion  as  to  the  sanity  or  insanity  of  the  person  at  the  time 
when  he  thus  observed  or  examined  him."  3  So,  where  a 
medical  expert  had  made  a  personal  examination  of  the 
uterus  of  a  deceased  woman,  it  was  proper  to  ask  him, 
"What,  in  your  opinion,  caused  the  death  of  the  person 
from  whom  the  uterus  was  taken?  "  *  And  an  expert  hav- 
ing personal  knowledge  of  the  facts  has  been  permitted  to 
testify  that  a  machine  was  constructed  in  a  workmanlike 

1  Cincinnati,  etc.  Mut.  Ins.  Co.  v.  May.  20  Ohio,  211,  224;  Tefft  v.  Wil- 
cox,  6  Kan.  46;   Page  v.  State,  61  Ala.  16;  Woodbuiy  v.  Obear,  7  Gray, 
467;  Pidcockv.  Potter,  68  Peiin.  St.  342;  Bishop  v.  Spining,  38  Ind.  143: 
Ouiterman  v.  Liverpool,  etc.  Steamship  Co.,  83  X.  Y.  358,  366;  State  v. 
Klinger,  46  Mo.  224;  Carpenter  v.  Blake.  2  Lans.  (X.  Y.)  206. 

2  Bellefontaine,  etc.  R.  R.  Co.  v.  Bailey,  11  Ohio  St.  333,  337;  Trans- 
portation Line  v.  Hope,  95  U.  S.  297, 298;  Brown  v.  Huffard,  69  Mo.  305 ; 
Ayres  v.  Water  Commissioners,  29  X.  Y.  Sup.  Ct.  297;  Bellinger  v.  X. 
Y.  Cent.  R.  R.  Co.  23  X.  Y.  42,  46;  Dunham's  Appeal,  27  Conn.  193. 

8  State  v.  Felter,  25  Iowa,  67,  74,  75,  per  Dillon,  C.  J. 
4  State  v.  Glass.  5  Oregon.  73. 


EXAMINATION  OF  EXPERT  WITNESSES.  45 

manner ; l  that  a  wall  was  properly  and  compactly  con- 
structed ; 2  that  the  abutments  of  a  bridge  were  properly  and 
skillfully  placed,  and  sufficient  to  discharge  water  in  time  of 
flood  ;3  that  an  article  was  properly  stowed  in  a  vessel.4 

In  relation  to  this  subject  we  cannot  do  better  than 
quote  from  the  opinion  of  Lord  Chief  Justice  TINDAL,  de- 
livered in  the  House  of  Lords,  in  the  celebrated  McNagh- 
ten  case  :  "  The  question  lastly  proposed  by  your  Lordships 
is  :  '  Can  a  medical  man  conversant  with  the  disease  of 
insanity,  who  never  saw  the  prisoner  previous  to  the  trial,, 
but  who  was  present  during  the  whole  trial  and  the  exam- 
ination of  all  the  witnesses,  be  asked  his  opinion  as  to  the 
state  of  the  prisoner's  mind  at  the  time  of  the  commission 
of  the  alleged  crime,  or  his  opinion  whether  the  prisoner 
was  conscious  at  the  time  of  doing  the  act  that  he  was  act- 
ing contrary  to  law,  or  whether  he  was  laboring  under  any 
and  what  delusion  at  the  time  ? '  In  answer  thereto,  we 
state  to  your  Lordships,  that  we  think  the  medical  man, 
under  the  circumstances  supposed,  cannot  in  strictness  be 
asked  his  opinion  in  the  terms  above  stated,  because  each 
of  those  questions  involves  the  determination  of  the  truth 
of  the  facts  deposed  to,  which  it  is  for  the  jury  to  decide, 
and  the  questions  are  not  mere  questions  upon  a  matter  of 
science,  in  which  case  such  evidence  is  admissible.  But 
where  the  facts  are  admitted  or  not  disputed,  and  the  ques- 
tion becomes  substantially  one  of  science  only,  it  may  be 
convenient  to  allow  the  question  to  be  put  in  that  general 
form,  though  the  same  cannot  be  insisted  on  as  matter  of 
right."  5  Whenever  a  hypothetical  question  is  put  in  such 
a  form  that  the  answer  to  it  depends  on  what  the  recollec- 
tions and  impressions  of  the  witness  are  as  to  the  evidence 


1  Cnrtis  v.  Gano,  26  N.  Y.  426. 

2  Pullman  v.  Corning,  9  N.  Y.  93. 

3  Couhoctoii  Stone  Road  Co.  v.  Buffalo,  N.  Y.  &  Erie  K.  R.  Co.,  10  X. 
Y.  523. 

*  Price  v.  Powelh  3  N.  Y.  322. 
510C1.  &Fin.  200,  211. 


46  EXPERT  TESTIMONY. 

which  he  has  heard,  it  is  improper,  and  goes  beyond  the 
limits  of  questions  to  experts.1 

It  may  be  remarked  as  well  in  this  connection  as  any 
other,  that  answers  to  hypothetical  questions  are  not  objec- 
tionable because  they  include  considerations  not  referred  to 
in  the  questions,  as  constituting  the  basis  of  the  opinion 
given,  and  such  as  the  testimony  tends  to  prove,  and  as 
might  properly  have  been  included  in  the  questions.'2 

§  28.  The  Hypothetical  Question  on  the  Cross-exam- 
ination.—  After  counsel  have  propounded  to  an  expert  a 
hypothetical  question,  based  on  the  facts  assumed  to  have 
been  proved  in  accordance  with  their  theory  of  the  case, 
opposing  counsel  may  propound  the  same  question  to  the 
same  witness  based  on  the  facts  assumed  in  the  opposing 
theory.3  In  the  case  cited,  the  court  below  had  sustained 
an  objection  to  such  method  of  examination,  on  the  ground 
that  it  was  not  legitimate  cross-examination.  This  ruling 
was  reversed  on  appeal,  the  court  expressing  itself  as  fol- 
lows:  "  We  think  that  when  such  a  witness  has  expressed 
an  opinion  based  on  facts  assumed  by  the  party  introducing 
him  to  have  been  proved,  or  upon  a  hypothetical  case  put 
by  such  party,  the  Other  party  may  cross-examine  him  by 
taking  his  opinion  based  on  any  other  set  of  facts  assumed 
by  him  to  have  been  proved  by  the  evidence,  or  upon  a  hy- 
pothetical case  put  to  him." 

Upon  the  trial  of  a  person  indicted  for  murder,  where 
the  defence  was  insanity,  it  was  held  no  error  to  require  the 
defendant  to  submit  his  hypothetical  case  to  his  profes- 
sional witnesses,  before  the  rebutting  evidence  of  the  State 
was  heard  on  the  question  of  sanity.  The  court  declaring 
that  if  evidence  materially  varying  the  hypothetical  case 
was  afterwards  introduced,  the  defendant  must  ask  leave  to 
re-examine  as  to  new  matter.4 

1  Hagadorn  v.  Connecticut  Mutual  Life  Ins.  Co.,  29  1ST.  Y.  Sup.  Ct.  251. 

2  Hathaway 's  Admr.  v.  National  Life  Ins.  Co.,  48  Vt.  335. 

3  Davis  v.  State,  35  Ind.  496. 
A  Dove  v.  State,  52  Tenn.  348. 


EXAMINATION  OF  EXPERT  WITNESSES.  47 

§  29.  Questions  to  Experts  should  not  Embrace  Ques- 
tions of  Law. —  It  is  not  proper  to  so  frame  a  question  to 
an  expert  as.  to  call  for  an  expression  of  an  opinion  as  to 
the  law  of  the  case.  For  instance,  it  is  improper  to  ask  a 
medical  expert  whether  a  person  possessed  sufficient  mental 
capacity  to  enable  him  to  make  a  will.1  The  question  should 
l>e  so  framed  as  to  require  him  to  state  the  degree  of  intel- 
ligence or  imbecility  of  the  person,  in  the  best  way  he  can, 
by  the  use  of  such  ordinary  terms  as  will  best  convey  his 
own  ideas  of  the  matter.2  Or  the  witness  may  be  asked 
whether  the  testator's  mind  and  memory  were  sufficiently 
sound  to  enable  him  to  know  and  understand  the  business 
in  which  he  was  engaged  at  the  time  he  executed  the  will.3 

§  30.  Questions  to  Experts  as  to  Particular  Cases. — 
While  the  opinion  of  experts  may  be  based  on  their  obser- 
vation and  experience  in  similar  cases,  yet  the  principle  is 
well  settled  that  such  witnesses  cannot,  on  their  direct  ex- 
amination, be  questioned  concerning  the  particular  cases 
which  have  happened  to  come  within  their  observation,  and 
which  have  no  connection  with  the  case  in  hand.4  The  rea- 
son for  the  rule  is  manifestly  to  prevent  the  introduction  of 
innumerable  side  issues,  which  might  render  the  trial  of  a 
cause  interminable,  distract  the  attention,  of  the  jury  from 
the  real  issue,  and  render  the  costs  in  the  case  unnecessarily 
burdensome  and  enormous.  Different  experts  might  have 
different  theories,  and  each  theory  might  be  founded  on  the 
observance  of  several  and  distinct  cases,  each  of  which  the 
opposite  party  would  have  a  right  to  controvert.  And  inas- 
much as  a  party  would  be  unable  to  anticipate  the  cases 
which  the  experts  on  the  other  side  would  mention,  he 

1  Farrell  v.  Brenuan,  32  Mo.  328;    McClintock  v.  Card,  32  Mo.  411; 
May  v.  Bradlee,127  Mass.  414;  Gibson  v.  Gibson,  9  Yerg.  329;  White  v. 
Bailey,  10  Mich.  135. 

2  Fairchild  v.  Bascomb,  35  Vt,  416,  417;  State  v.  Ilayden,  51  Vt.  304; 
Crowell  v.  Kirk  3  Dev.  (X.  C.)  358. 

3  McClintock  v.  Card,  32  Mo.  411. 

* 1  Greenl.  Ev.  §  448;  Clark  v.  Willett,  35  Cal.  534,  544;  Central  Pacific 
R.  R.  Co.  v.  Pearson,  35  Cal.  247;  Jonan  v.  Ferrand,  3  Rob.  (La.)  3GG; 
Home  v.  Williams  12  Intl.  324. 


48  EXPERT  TESTIMONY. 

would  be  unable  to  prepare  for  their  investigation,  and 
would,  therefore,  be  unable  to  properly  avail  himself  of  his 
right  to  controvert  them. 

§  31.  An  Expert  cannot  l>e  Asked  for  an  Opinion  OR 
Facts  not  Stated. —  An  expert,  testifying  from  personal 
knowledge,  cannot  be  asked  for  an  opinion  based  on  facts 
which  he  has  not  given  in  evidence.  He  should  be  first  asked 
as  to  the  facts,  and  then  allowed  to  state  his  opinion.  This 
is  necessary  to  enable  the  correctness  of  the  opinion  ex- 
pressed to  be  tested  by  calling  other  experts,  and  obtaining 
their  opinion  upon  the  same  state  of  facts.  It  is  equally 
necessary  to  enable  the  jury  to  have  the  means  of  deter- 
mining whether  the  facts  upon  which  the  opinion  is  predi- 
cated, were  correct  or  not.  Hence  it  has  been  held  improper 
to  ask  a  physician  "  whether  a  person  \vas  in  good  health, 
and  free  from  any  symptoms  of  disease,"  he  not  having 
testified  to  any  facts  from  which  it  could  be  seen  upon 
what  his  opinion  was  based.1  For  the  same  reason  the  fol- 
lowing question  has  been  held  improper :  "  From  what  you 
found  at  the  time,  in  the  examination  of  her,  from  your 
knowledge  of  her  during  the] years  previous,  and  from  the 
symptoms  whichjyou  observed  at  that  time,  paralysis  or 
trouble  with  her  limbs,  and  the  other  difficulties  under 
which  she  is  laboring,  what  in  your  opinion  produced  the 
condition  that  you  then  found  her  in  ?  '  '2  So  it  has  been  held 
improper  to  ask  experts  who  saw  a  railroad  accident, 
whether,  in  their  opinion  after  having  seen  the  accident, 
anything  could  have  been  done  by  the  conductor  to  pre- 
vent it  ?  It  called  for  an  opinion  not  derived  from  the  tes- 
timony, but  simply  what  was  seen  at  the  time  of  the  occur- 
rence.3 

The  opinion  of  an  expert  is  inadmissible  if  based  on  facts 
which  he  has  heard  outside  the  court  room,  and  which  he 
believes  to  be  credible.4  An  exception  exists  in  the  case 

1  Eeidv.  Piedmont,  etc.  Life  Ins.  Co.,  58  Mo.  425. 

2  Van  Deusen  v.  Newcomer,  40  Mich.  120. 

3  Haggerty  v.  Brooklyn,  etc.  K.  E.  Co.,  61  N.  Y.  624. 

<  Polk  v.  State,  36  Ark.  117,  124 ;  Baltimore,  etc.  K.  K.  Co.  v.  Shipley.. 
39  Md.  251. 


EXAMINATION  OF  EXPERT  WITNESSES.  49 

of  physicians  whose  testimony  is  based  in  part  on  declara- 
tions of  patients,  but  that  is  elsewhere  considered.1 

§  32.  Latitude  of  Inquiry  in  the  Examination  of  Ex- 
perts.— The  rule  is  laid  down  that  in  the  examination  of 
experts,  considerable  latitude  of  inquiry  is  to  be  indulged, 
and  that  counsel  are  not  to  be  limited  by  any  narrow  or 
stringent  rules,  either  in  obtaining  their  opinions  upon  the 
facts  disclosed,  or  in  ascertaining  their  skill  and  compe- 
tency, or  the  want  of  them.2  "  There  must  be  some  limit 
to  such  an  inquiry,  and  from  the  nature  of  the  case,  no 
definite  limit  can  be  prescribed  as  a  rule  of  law.  The  court 
ought  to  permit  the  inquiry  to  proceed  far  enough  to  enable 
the  jury  to  judge  of  the  reasonableness  of  the  witness'  pre- 
tentious to  skill,  so  far  as  such  an  inquiry  can  afford  the 
means."3  But  it  is  to  be  observed  that  after  a  witness  has 
been  admitted  to  testify  as  an  expert,  evidence  cannot  be 
given  to  the  jury  of  the  opinion  of  other  experts  in  the  same 
science,  that  the  witness  was  qualified  to  draw  correct  con- 
clusions on  the  science  on  which  he  had  been  examined,4 
the  general  rule  being,  that  after  such  a  witness  has  been 
adjudged  competent  by  the  court,  his  reputation  can  only 
be  sustained  after  it  has  been  impeached.5  Any  different 
rule,  it  has  been  said,  "  would  lead  to  anything  but  a  satis- 
factory result.  Another  witness  might  then  be  called  to 
give  his  opinion  as  to  the  capacity  of  him  just  examined,  to 
form  a  correct  opinion  on  the  degree  of  weight  which  was 
due  to  the  testimony  of  the  first,  and  so  on.  The  jury  are 
to  judge  of  the  weight  due  to  the  opinion  of  medical  men 
on  the  disease,  from  the  facts  detailed  by  them,  and  the 
reasons  given  in  support  of  their  conclusions,  not  from  the 
opinion  others  may  form  of  their  capacity."6  It  has  been 
held  competent,  however,  for  one  expert  to  testify  as  to  the 

1  §§  47  48. 

2  Leopold   v.  Vim  Kirk,  29  Wis.  548,  555;   Brown  v.  Chenoworth,  51 
Tex.  469. 

3  Andre  v.  Hardin,  32  Mich.  326. 
*  Tullis  v.  Kidd,  12  Ala.  648. 

5  De  Phul  v.  State,  44  Ala.  39. 
«  Brabo  v.  Martin,  3  La.  It.  177. 

(4) 


50  EXPERT  TESTIMONY. 

skill  of  another,  where  the  knowledge  of  the  witness  was 
derived  from  personal  observation,  as  distinguished  from 
an  opinion  based  on  such  expert's  general  reputation.1  In 
the  case  cited,  one  expert  was  allowed  to  testify  as  to  the 
correctness  of  the  tests  used  by  another  expert  in  testing 
for  arsenic.  A  witness  called  as  an  expert  cannot  be  asked 
on  cross-examination  whether  he  considers  himself  as  good 
a  judge  of  the  matter  in  dispute,  as  other  witnesses  who 
have  testified  as  experts,  for  the  reason  that  such  a  question 
is  simply  an  attempt  to  get  the  opinion  of  the  witness  as  to 
the  value  of  the  testimony  of  the  experts  on  the  other  side.2 
When  a  witness  has  been  adjudged  competent  upon  the 
preliminary  examination,  opposing  proof  going  to  his  in- 
competency  is  to  be  addressed  to  the  jury  to  affect  the 
value  of  his  testimony,  and  not  to  the  court  for  the  purpose 
of  excluding  his  opinion.3  And  it  has  been  held,  therefore, 
no  ground  for  objection,  that  counsel  was  not  permitted  on 
the  preliminary  examination  of  the  expert,  to  cross-examine 
him  for  the  purpose  of  testing  his  competency,  he  having 
an  opportunity  on  the  cross-examination  in  chief  to  test  and 
impeach  his  skill,4  for  the  extent  of  an  expert's  acquaint- 
ance with  the  subject  matter,  may  always  be  inquired  into, 
to  enable  the  jury  to  estimate  its  weight,5  and  counsel  have 
a  right  in  every  case  to  the  reasons  upon  which  the  opinion 
of  the  expert  is  based.6  In  an  early  case  in  Massachusetts, 
the  depositions  of  medical  experts  on  the  question  of  a 
person's  sanity,  were  rejected  because  the  experts  did  not 
state  the  reasons  for  their  opinion.7  "  Whenever  the 
opinion  of  any  living  person  is  deemed  to  be  relevant,  the 
grounds  on  which  such  opinion  is  based  are  also  deemed  to 

1  Laros  v.  Commonwealth,  84  Fenn.  St.  200,  209. 

*  Haverhill  Loan  etc.  Ass.  v.  Cronin,  4  Allen  (Mass.)  141. 

*  Washington  v.  Cole,  6  Ala.  212. 

4  Sari  v.  Arnold,  7  R.  I.  586. 

5  Davis  v.  State,  35  Ind.  496. 

6  State  v.  Hooper,  2  Bailey  (S.  C.;  Law,  37;  Fairchikl  v.  Bascomb,  35 
Vt.  398,  406;  Lincoln  v.  Taunton  Manufacturing  Co.,  9  Allen,  (Mass.) 
182,  191,  192;  Keith  v.  Lothrop,  10  Cash.  (Mass.)  457;    In  re  Springer, 
4  Penn.  Law  J.  275;  Commonwealth  v.  Webster,  5  Cash.  (Mass.)  295. 

7  Dickinson  v.  Barber,  9  Mass.  218. 


EXAMINATION  OF  EXPERT  WITNESSES.  51 

be  relevant."1  Neither  judge  nor  jury  can  know  what 
credence  to  give  to  a  mere  opinion,  unless  the  reasons  on 
which  it  is  founded  are  set  forth.  The  opinion  of  an  expert 
may  be  contradicted,  by  showing  that  at  another  time  he 
had  expressed  a  different  opinion,2  and  he  may  be  asked  as 
to  the  grounds  upon  which  the  change  of  his  opinion  had 
been  brought  about.3  While  the  inquiry  into  the  grounds 
and  reasons  of  the  opinion  of  an  expert  is  more  frequently 
made  on  the  cross-examination  of  the  witness,  yet  there  is 
no  objection  to  its  being  made  on  the  direct-examination.4 
Where  an  expert  was  called  and  asked  if  he  concurred  in 
the  statement  of  another  expert  witness,  and  if  not,  to  state 
wherein  he  differed,  the  court  held  this  method  of  examina- 
tion to  be  erroneous.  "  The  mode  sought  to  be  adopted  in 
eliciting  the  opinion  of  this  witness,  may  have  the  merit  of 
being  expeditious,  but  it  might  be.  attended  with  some  un- 
fairness toward  the  witness  himself,  as  well  as  to  the 
opposite  party.  Witnesses  called  upon  to  testify  profes- 
sionally, should  be  left  free  to  give  their  own  individual 
opinion  upon  the  facts  involved,  unconnected  with,  and  un- 
trammeled  by  the  opinions  of  others  who  may  have  been 
examined."5 

§  33.  Some  General  Rules  Governing  the  Examination 
of  Witnesses. — It  would  be  foreign  to  our  purpose  to  con- 
sider in  detail  those  rules  of  evidence  regulating  the  exami- 
nation of  witnesses,  which  are  alike  applicable  to  the 
examination  of  professional  and  non-professional  witnesses. 
Yet  a  concise  statement  of  the  more  important  principles  to 
be  observed  in  such  cases,  may  be  found  of  convenience  in 
this  connection. 

I.  Evidence  should  be  confined  to  the  points  in  issue,  and 
evidence  of  collateral  facts  which  are  incapable  of  affording 

1  Stephen's  Dig.  of  Ev.,  Art.  54. 

2  Sanderson  v.  Nashua,  44  N.  II.  492. 
8  People  v.  Donovan,  43  Cal.  162. 

*  Dickenson  v.  Fitchburg,  13  Gray.  546. 557. 
5  Home  v.  Williams.  12  Intl.  324. 


52  EXPERT  TESTIMONY. 

any  reasonable  presumption  as  to  the  principal  matter  in 
dispute,  should  not  be  received.1 

(a)  Evidence  of  collateral  facts  may,  however,  be  re- 
ceived where  the  question  is  a  matter  of  science,  and  where 
the  facts  proved,  though  not  directly  in  issue,  tend  to  illus- 
trate the  opinions  of  scientific  witnesses.2 

II.  Leading  questions  should  not  be  asked  on  the  direct, 
but  may  be  asked  on  the  cross-examination  of  a  witness.3 

(a)  The  above  rule  may  be  relaxed  when  made  neces- 
sary by  the  complicated  nature  of  the  matter  concerning 
which  the  witness  is  interrogated.4 

(6)  And  the  rule  does  not  apply  when  the  witness  appears 
to  be  hostile  to  the  party  producing  him.5 

III.  In  England  the  rule  is  that  the  examination  and 
cross-examination  of  a  witness,  must  relate  to  the  facts  in 
issue,  or  relevant  or  deemed  to  be  relevant  thereto,  while 
the  re-examination  must  be  directed  to  an  explanation  of 
the  matters  referred  to  in  the  cross-examination.6     But  in 
this  country,  the  weight  of  authority  is  said  to  be  in  favor 
of  confining  the  cross-examination  of  the  witness  to  the 
facts  testified  to  in  chief.7 

IV.  On  the  cross-examination,  a  witness   may  be  asked 
any  question  tending,  (1)  to  test  his  accuracy,  veracity  or 
credibility,  or,  (2)  to  shake  his  credit  by  injuring  his  char- 
acter.   And  he  may  be  compelled  to  answer  the  same,  unless 
such  answer  would  tend  to  criminate  himself.8 

V.  If,  on  the  cross-examination,  a  witness  is  asked  a 
question  which  is  relevant  only  in  that  it  may  tend  to  shake 
his  credit  by  injuring  his  character,  his  answer  cannot  be 
contradicted  unless,  (1)  he  has  denied  facts  tending  to  show 

1 1  Taylor  Evicl.,  §  316;  1  Greenl.  Evid.,  §  52;  1  AVharton'sEvid.,  §  29. 

*1  Taylor  Evid.,  §337'. 

3  2  Best  Evid.,  §  641 ;  1  Greenl.  Evid.,  §  434;  1  Wharton's  Evid.,  §  499. 

*  Stephens'  Evid.,  Art.  128;  2  Best  Evid.,  §  642. 

*  2  Taylor  Evid.,  §  1262  A;  1  Greenl.  Evid.,  §  435;  1  Wharton's  Evid., 
§  500. 

6  Stephens'  Evid.,  Art.  127. 

7 1  Greenl.  Evid.,  §  415;  1  Wharton's  Evid.,  §  529. 

8  Stephens'  Evid.,  Art.  129;  1  Wharton's  Evid.,  §  5G2. 


EXAMINATION  OF  EXPERT  WITNESSES.  53 

that  he  is  not  impartial,  or,  (2)  he  has  been  asked  and  has 
denied  or  refused  to  answer  whether  he  has  been  convicted 
of  some  criminal  offence.1 

VI.  On  the  cross-examination,  a  witness  may  be  asked  as 
to  any  former  statements  which  he  may  have  made,  and  which 
are  inconsistent  with  his  present  testimony.     If  he  denies 
having  made  them,  they  may  be  proven  against  him.2 

VII.  The  court  in  its  discretion,  may  permit  a  witness  to 
be   recalled    for   further    examination.      If   permission    is 
granted  for  further  examination-in-chief,  or  further  cross- 
examination,  the  parties  have  the  right  of  further  cross- 
examination  and  of  further  re-examination  respectively.3 

VIII.  A  party  is  entitled  to  the  cross-examination  of  a 
witness  who  has  been,  ( 1 )  examined-in-chief,  or,  (2)  accord- 
ing to  the  English  rule,  if  he  has  been  intentionally  sworn.4 

§  34.  Excluding  Experts  from  the  Court  Room  during 
the  Examination  of  AVitnesses. — The  principle  is  well 
settled  that  the  judge,  on  the  application  of  either  party, 
may,  at  his  discretion,  order  a  separation  of  ordinary  wit- 
nesses, in  order  that  they  may  be  prevented  from  hearing 
the  testimony  of  the  witnesses  as  given  in  the  court  room.5 
And  this  practice  was  established  at  an  early  period,  being 
referred  to  with  approbation  by  Fortescue,  in  his  work  De 
Laudibus  Legum  Anglice.6  It  is  evident  that  in  the  case  of 

1  Stephens'  Evid.,  Art.  130;  1  Wharton's  Evid.,  §  559;  1  Greenl.  Evid., 
§§  448,  449. 

2  Stephens'  Evid.,  Art.  131 ;  1  Wharton's  Evid.,  §  551 ;  1  Greenl.  Evid., 
§  4G2. 

3  Stephens'  Evid.,  Art.  126;  1  Wharton's  Evid.,  §§  572,  575. 
<  Stephens'  Evid.,  Art.  12G. 

5  Selfe  v.  Isaacson,  1  F.  &  F.  194;  Southey  v.  Xash.  7  C.  &  P.  632; 
Regina  v.  Xewman,  3  C.  &.  K.  260;  McLean  v.  State,  16  Ala.  672;  Wilson 
v.  State,  52  Ala.  299;  Pleasant  v.  State,  15  Ark.  624,  633;  People  v. 
Boscovitch,  20  Cal.  436;  Johnson  v.  State,  2  Ind.  G52;  Errisman  v.  Erris- 
man,  25  111.  136;  Davenport  v.  Ogg,  ISKans.  363;  Sartorious  v.  State,  24 
Miss.  602;  Dyer  v.  Morris,  4  Mo.  214;  State  v.  Fitzsimmons,  30  Mo.  236; 
State  v.  Zellers,  7  X.  J.  L.  220;  Laughlin  v.  State,  18  Ohio,  99;  State  v. 
Salge,  2  Xev.  321;  Hopper  v.  Commonwealth,  6  Gratt.  (Va.)  684; 
Beuaway  v.  Conyne,  3  Chand.  (Wis.)  214. 

6 -;Et  si  necessitas  exegerit  dividantur  testes  hujus  modi,  donee  ipsi 
de  posuerint  quicquid  velint,  ita  quod  dictum  unius  non  docebit  aut 
concitabit  eorum  alinrn  ad  consimiliter  testificandum."  C.  26. 


54  EXPERT  TESTIMONY. 

the  expert  witnesses  an  exception  should  be  made.  As  they 
are  to  be  examined  as  to  opinions  based  on  facts  testified  to 
by  other  witnesses,  they  should  be  allowed  to  remain  in  court 
and  hear  the  evidence  relating  to  the  facts.  But  when  the 
testimony  as  to  the  facts  is  closed,  and  the  expert  testimony 
commences,  the  judge  may,  in  his  discretion,  order  a  separ- 
ation of  the  expert  witnesses.  Such  is  the  practice  in  Scot- 
land, where  it  has  been  the  usual  practice  to  exclude  medical 
witnesses  as  soon  as  the  medical  experts  commence  testify- 
ing concerning  matters  of  opinion.1  In  England  the  rule  is 
laid  down  that  "  medical  or  other  professional  witnesses, 
who  are  summoned  to  give  scientific  opinions  upon  the  cir- 
cumstances of  the  case,  as  established  by  other  testimony, 
will  be  permitted  to  remain  in  court  until  this  particular 
class  of  evidence  commences,  but  then,  like  ordinary  wit- 
nesses, they  will  have  to  withdraw,  and  to  come  in  one  by 
one,  so  as  to  undergo  a  separate  examination."2  And  in 
this  country  the  principle  is  similarly  stated.3 

§  35.  Right  of  the  Court  to  Limit  the  Number  of  Ex- 
pert Witnesses. — The  number  of.  expert  witnesses,  whose 
testimony  will  be  received  in  any  particular  case,  rests  in 
the  sound  discretion  of  the  trial  court.  In  the  old  Roman 
law,  the  power  of  the  court  to  limit  the  number  of  experts 
who  could  be  sworn,  and  even  to  select  two  or  three  from 
those  proposed  by  the  parties,  excluding  the  others,  was 
conceded  to  exist.4  And  in  this  country,  the  right  of  the 
court  to  decline  to  permit  certain  witnesses  to  be  sworn  as 
experts,  after  a  sufficient  number  have  already  been  exam- 
ined, has  been  maintained  in  several  cases.5  But  it  would 
not  be  proper  for  the  court  to  limit  a  party  to  one  witness 
on  any  vital  point.6  In  France  the  number  of  experts  who 

1  Alison's  Practice  of  Crira.  Law  of  Scotland,  542. 

«  2  Taylors's  Evid.,  §  1259.    And  see  Tait.  Evid.  420. 

8  1  Wharton's  Evid.,  §  492. 

«  Bartol  in  L.  1,  pr.  de  veutr.  insp.  no.  5;  Bald,  in  L.  20,  cod.  de  fide 
inst. 

'Sizer  v.  Burt,  4  Denio,  426;  Anthony  v.  Smith,  4  Bos.  (X.  Y.)  503, 
508;  Fraser  v.  Jeunison,  42  Mich.  206,  223. 

e  See  Hubble  v.  Osborn,  31  Ind.  249. 


EXAMINATION  OF  EXPERT  WITNESSES.  55 

may  be  examined  in  questions  of  handwriting,  seems  to  be 
limited  to  three,1  while  in  Kansas  the  opinions  of  at  least 
three  experts  are  required  by  law,  to  establish  the  genuine- 
ness of  a  disputed  writing.2  In  a  recent  case  in  Michigan, 
involving  testamentary  capacity,  the  trial  court",  after  listen- 
ing to  the  testimony  of  five  experts  called  by  the  contestants 
of  the  will,  declined  to  permit  a  sixth  expert  to  be  exam- 
ined. The  Supreme  Court  sustained  the  action  of  the  court 
below,  and  Mr.  Justice  Cooley  said:  "If  testamentary 
cases  are  ever  to  be  brought  to  a  conclusion,  there  must  be 
some  limit  to  the  reception  of  expert  evidence,  and  that 
which  was  fixed  in  this  case,  was  quite  liberal  enough.  To 
obtain  such  evidence  is  expensive,  since  desirable  witnesses 
are  not  to  be  found  in  every  community ;  but  an  army  may 
be  had  if  the  court  will  consent  to  their  examination  ;  and 
if  legal  controversies  are  to  be  determined  by  the  prepon- 
derance of  voices,  wealth,  in  all  litigation  in  which  expert 
evidence  is  important,  may  prevail  almost  of  course.  But 
one  familiar  with  such  litigation,  can  but  know  that  for  the 
purposes  of  justice,  the  examination  of  two  conscientious 
and  intelligent  experts  on  a  side,  is  commonly  better  than 
to  call  more.  And  certainly  when  five  on  each  side  have' 
been  examined,  the  limit  of  reasonable  liberality  has  in  most 
cases  been  reached.  The  jury  cannot  be  aided  by  going 
farther.  Little  discrepancies  that  must  be  found  in  the  testi- 
mony of  those  even  who  in  the  main  agree,  begin  to  attract 
attention  and  occupy  the  mind,  until  at  last,  jurors,  with 
their  minds  on  unimportant  variances,  come  to  think  that 
expert  evidence,  from  its  very  uncertainty,  is  worthless. 
This  is  not  a  desirable  state  of  things,  and  it  can  only  be 
avoided  by  confining  the  use  of  expert  evidence  within 
reasonable  bounds."3 

§   36.    By  whom  Expert  Witnesses  are  Selected.  —  In 
France  experts  are  officially  delegated  by  the  court,  to  in- 


1  Code  de  Procedure  civile,  Part  1, 1.  2,  tit.  10,  s.  200. 

2  Gen.  Stat.  (1868)  p.  854,  §  216. 

s  Fraser  v.  Jennison,  42  Mich.  206,  223.  224. 


56  EXPERT  TESTIMONY. 

quire  into  the  facts,  and  report  thereon.1  But  in  Germany 
even  greater  care  has  been  taken  to  provide,  that  only  those 
who  are  in  every  way  qualified  by  their  learning  and  expe- 
rience, shall  be  permitted  to  testify  in  the  character  of 
experts.  The  courts  of  that  country  are  not  granted  the 
power  of  appointment,  nor  allowed  to  pass  upon  the  quali- 
fications of  the  witnesses,  but  the  experts,  in  criminal  cases, 
first  summoned  are  exclusively  those  whom  the  State,  after 
prior  examination  of  their  competency  and  skill  in  such  par- 
ticular inquiries,  has  duly  authorized  to  testify  in  such 
cases.  In  addition  to  this,  provision  is  made  for  an  appeal 
to  a  tribunal  of  experts,  to  which  the  opinions  of  the  expert 
witnesses- can  be  referred.2  In  Prussia  it  was  the  practice 
for  the  State  to  appoint  as  experts,  a  physician  and  surgeon 
for  every  county.  A  medical  college  was  established  for 
each  province,  to  which  men  of  peculiar  knowledge  in  med- 
ical jurisprudence  were  assigned.  And  if  a  difference  of 
opinion  existed  between  the  county  experts,  or  the  parties 
desired  an  appeal,  the  case  could  be  brought  before  this 
medical  college  of  the  province.  In  addition  to  this  an 
appellate  medical  commission  for  the  whole  Monarchy  ex- 
isted.' In  England  and  in  this  country,  as  all  know,  the 
practice  has  been  entirely  different  from  that  adopted  in 
either  France  or  Germany.  Both  here  and  in  England  the 
parties  usually  select  their  own  experts,  and  pay  them  their 
compensation.  The  adoption  in  this  country  of  the  German 
system  of  governmental  experts,  has  been  advocated  by  a 
distinguished  writer  on  medico-legal  questions,4  who  pro- 
poses that  there  should  be  selected  after  an  adequate  com- 
petitive examination,  a  medical  expert  for  each  county  in  a 
State,  to  whom  should  be  referred  all  questions  of  medical 
science  that-might  arise  in  a  litigation.  It  is  proposed  that 

1  Code  de  Procedure  civile,  Part  1, 1.  2,  tit.  10,  s.  200.  And  see  Best  on 
Evidence,  §  515. 

*  Casper's  Gericht  Med.,  Berlin,  1871, 1,  §  3.  See  2  Wharton  &  StiUe's 
Med.  Juris.  (Part  II)  §  1249. 

»  Rechte  lexicon,  Leipzig,  1870, 1,  478. 

4  2  Wharton  &  StUle's  Medical  Jurisprudence,  Pt.  II,  §  1250. 


EXAMINATION  OF  EXPEET  WITNESSES.  57 

it  should  be  his  duty  to  take  testimony  bearing  on  such 
questions,  and  hear  counsel  thereon,  and  after  having 
judicially  heard  the  case,  should  certify  his  opinion  to  the 
court,  by  whom  the  reference  was  made.  In  proper  cases 
an  appeal  could  be  taken  from  such  an  opinion  to  a  Supreme 
Court  of  governmental  experts  appointed  by  the  State  at 
large.  In  this  way  it  is  thought  that  the  expert  would  be 
free  from  the  embarrassment  of  any  personal  relations  to 
the  parties.  4i  He  will  have  no  client  to  serve,  and  no  past 
partisan  extravagances  to  vindicate.  He  will  render  his 
opinion  >s  the  advocate  neither  of  another  nor  of  himself. 
When  he  speaks,  he  will  do  so  judicially,  as  the  representa- 
tive of  the  sense  of  the  special  branch  of  science  which  the 
case  invokes,  governed  by  the  opinion  of  the  great  bodv  of 
scientists  in  this  relation,  and  advised  of  the  most  recent 
investigations.  When  this  is  done,  we  will  have  expert  evi- 
dence rescued  from  the  disrepute  into  which  it  has  now 
fallen,  and  invested  with  its  true  rights  as  the  expression  of 
the  particular  branch  of  science  for  which  it  speaks."  The 
appointment  of  a  board  of  State  experts  certainly  has  much 
to  commend  it  to  judicial  approval.  By  the  adoption  of 
some  such  system,  the  mature  judgment  of  the  best  minds 
could  be  obtained,  and  the  superficial  opinions  of  quacks 
and  mountebanks  would  not  be  thrust  upon  the  jury  to 
their  confusion,  and  to  the  hinderance  of  justice.  Whether 
the  experts  are  appointed  by  the  court  or  by  the  State,  in 
either  case  there  would  be  eliminated  the  embarrassment 
caused  by  having  the  experts  appear  in  the  case  as  the  in- 
terested partisans  of  the  party  by  whom  they  are  called 
and  specially  paid.  But  while  we  should  under  the  system 
proposed  be  rid  of  some  of  the  embarrassments  we  now 
labor  under,  there  are  certain  disadvantages  connected  with 
it  which  seriously  detract  from  its  practicable  value.  Men 
eminent  in  one  branch  of  their  profession  often  have  but  a 
superficial  knowledge  of  other  branches,  and  a  physician 
who  may  be  very  able  and  learned  in  certain  subjects  con- 
nected with  his  profession,  may  be  quite  ignorant  of  certain 
intricate  questions  of  medical  science.  So  that  if  all  ques- 


58  EXPERT  TESTIMONY. 

tions  of  medical  science,  for  instance,  have  to  be  referred  to 
a  board  of  governmental  experts,  suitors  would  be  practi- 
cally prohibited  from  availing  themselves  of  the  testimony 
of  other  experts,  who  might  be  much  better  qualified  by 
their  special  knowledge  on  that  particular  subject,  to  form  a 
correct  and  accurate  opinion. 

Another  distinguished  writer,1  has  expressed  the  opinion 
that  it  would  be  better  to  take  away  from  counsel  the  exam- 
ination of  experts,  and  devolve  it  upon  the  court.  "  It 
would  be  better,"  he  says,  "  were  it  possible,  for  the  court 
alone  to  examine  experts  upon  those  points  on  which  their 
professional  opinions  are  needed,  rather  than  to  hand  them 
over  to  counsel,  each  of  whom  has  an  interest  in  making 
their  testimony  aid  his  own  side,  and  to  that  extent  forcibly 
impressing  upon  it  a  unilateral  character."  He  overlooks 
the  fact  that  it  is  necessary  to  a  thorough  and  enlight- 
ened examination  of  an  expert  witness  on  an  intricate  ques- 
tion of  medical,  or  other  science,  that  the  examiner  should 
have  made  himself  as  familiar  as  possible  with  the  subject 
matter  of  inquiry.  To  prepare  himself  for  the  examination 
of  an  expert  witness,  counsel  often  spend  days  and  even 
weeks  in  the  careful  investigation  of  the  scientific  question 
involved.  This  the  court  cannot  do,  both  for  want  of  time, 
and  for  want  of  knowledge  of  the  questions  which  will  be 
raised.  It  is  the  part  of  wisdom  that  the  inquisitorial  and 
judicial  functions  should  be  so  far  as  possible  kept  distinct. 

§  37.  Weight  of  Expert  Testimony  a  Question  for  the 
Jury. — But  while  the  court  determines  the  competency  of 
the  witness  to  testify  as  an  expert,  the  weight  to  be  ac- 
corded to  the  testimony  which  he  may  give,  is  a  question 
for  the  jury  to  determine.2  "  There  is  no  rule  of  law  that 

1  Ordonaux's  Jurisprudence  of  Medicine,  §  104,  p.  123. 

2  Mitchell  v.  State,  58  Ala.  418;  Delaware  etc.  Steam  Towboat  Co.  v. 
Starrs,  69  Penn.  St.  36,  41;  Sikes  v.  Paine,  10  Ired.  (N.  C.)  Law,  282; 
Davis  v.  State,  35  Ind.  496;  Forgery  v.  First  National  Bank,  66Ind.  123; 
Howard  v.  Providence,  6  R.  I.  516;  Parnell  v.  Commonwealth,  86  Penn. 
St.  260,  269;  Snyder  v.  State,  70  Ind.  349;  Johnson  v.  Thompson,  72  Ind. 
167;  Flynt  v.  Bodenhamer,  80  N.  C.  205;  State  v.  Secrest,  80  N.  C.  450, 

57;  Keithsburg  etc.  K.  E.  Co.  v.  Henry,  79  111.  290;   Pratt  v.  Kawson, 


EXAMINATION  OF  EXPERT  WITNESSES.  59 

requires  jurors  to  surrender  their  judgments  implicitly  to, 
or  even  to  give  a  controlling  influence  to  the  opinions  of 
scientific  witnesses,  however  learned  or  accomplished  they 
may  be,  and  however  they  may  speak  with  conceded  intelli- 
gence and  authority,  aided  by  the  accumulated  results  of  a 
long  experience."1  The  testimony  of  experts  is  to  be  con- 
sidered like  any  other  testimony,  and  is  to  be  tried  by  the 
same  tests,  and  receive  just  so  much  weight  and  credit  as 
the  jury  may  deem  it  entitled  to,  when  viewed  in  connection 
with  all  the  circumstances.2  Their  testimony  is  given,  it  is 
said,  for  the  purpose  of  enlightening  the  jury,  artd  not  for 
the  purpose  of  controlling  their  judgment.3  "  It  must  have 
its  legitimate  influence  by  enlightening,  convincing  and  gov- 
erning the  judgment  of  the  jury,  and  must  be  of  such  a 
character  as  to  outweigh,  by  its  intrinsic  force  and  proba- 
bility, all  conflicting  testimony.  The  jury  cannot  be  required 
by  the  court  to  accept,  as  matter  of  law,  the  conclusions  of 
the  witnesses  instead  of  their  own."4  Upon  the  jury  rests 
the  responsibility  of  rendering  a  correct  verdict,  and  if  the 
testimony  of  the  experts  is  opposed  to  the  jury's  convictions 
of  truth,  it  is  their  duty  to  disregard  it.5  They  should  take 
into  consideration  the  expert's  means  of  knowledge,  and  the 
reasons  he  assigns  for  the  opinion  he  has  given,  and  give 
or  withhold  credence  to  his  testimony,  as  they  may  find  his 
qualifications  sufficient,  and  his  reasons  satisfactory  or 
otherwise.6  The  value  of  an  opinion  does  not  depend  upon 
the  skill  and  knowledge  professed  by  the  expert,  but  upon 
the  skill  and  knowledge  which  he  actually  possesses,  and  of 


40  Vt.  183,  188;  Tatum  v.  Mohr,  21  Ark.  354;  Humphries  v.  Johuson,  20 
Ind.  190. 

1  Brchm  v.  Great  Western  R.  R.  Co.,  34  Barb.  256,  272. 

2  Carter  v.  Baker,  1  Sawyer  (U.  s'.  C.  C.)  512,  525;  Cuneo  v.  Bessoui, 
63  Ind.  524. 

8  Fletcher  v.  Seekel,  1  R.  I.  267;  Choice  v.  State,  31  Ga.  424,  481. 

4  Anthony  v.  Stinsou,  4  Kans.  221. 

*  United  States  v.  McGlue,  1  Curtis  C.  C.  1,  9. 

6  State  v.  Hinkle,  6  Io\va,  380';  Wood  v.  Sawyer,  Phillips  (X.  C.)  Law, 
253,  276;  Fail-child  v.  Bascomb,  35  Vt.  398.  406;  In  re  Springer.  4  Penu. 
Law  J.  275. 


60  EXPERT  TESTIMONY. 

the  accuracy  of  such  knowledge  the  jury  must  judge.1  It 
has  been  said,  however,  that  "an  expert's  opinion  on  a 
question  of  art  or  science,  is  a  fact  which  must  be  accepted 
by  a  jury,  if  uncontradicted."3 

§  38.  Right  of  the  Jury  to  Exercise  an  Independent 
Judgment. — The  right  of  the  jury  to  determine  the  weight 
to  be  accorded  to  the  testimony  of  experts,  is  well  illus- 
trated in  a  case  but  recently  decided  in  the  Supreme  Court 
of  the  United  States,  where  it  was  held  that  the  following 
instruction  was  erroneous,  in  an  action  brought  to  recover 
for  professional  services  as  attorneys  at  law:  "You  must 
determine  the  value  of  the  services  rendered  from  the  evi- 
dence that  has  been  offered  before  you,  and  not  from  your 
own  knowledge  and  ideas  as  to  the  value  of  such  services." 
The  opinion  of  the  court  was  delivered  by  Mr.  Justice  Field, 
in  the  course  of  which  he  says:  "It  was  the  province  of 
the  jury  to  weigh  the  testimony  of  the  attorneys  as  to  the 
value  of  the  services,  by  reference  to  their  nature,  the  time 
occupied  in  their  performance,  and  other  attending  circum- 
stances, and  by  applying  to  it  their  own  experience  and 
knowledge  of  the  character  of  such  services.  To  direct 
them  to  find  the  value  of  the  services  from  the  testimony  of 
the  experts  alone,  was  to  say  to  them  that  the  issue  should 
be  determined  by  the  opinions  of  the  attorneys,  and  not  by 
the  exercise  of  their  own  judgment  of  the  facts  on  which 
those  opinions  were  given.  The  evidence  of  experts  as  to 
the  value  of  professional  services,  does  not  differ  in  princi- 
ple, from  such  evidence  as  to  the  value  of  labor  in  other 
departments  of  business,  or  as  to  the  value,  of  property. 
So  far  from  laying  aside  their  own  general  knowledge  and 
ideas,  the  jury  should  have  applied  that  knowledge  and 
those  ideas  to  the  matters  of  fact  in  evidence,  in  determining 
the  weight  to  be  given  to  the  opinions  expressed  ;  and  it 
was  only  in  that  way  that  they  could  arrive  at  a  just  conclu- 
sion. While  they  cannot  act  in  any  case  upon  particular 
facts  material  to  its  disposition  resting  in  their  private 

1  Snyder  v.  State,  70  Ind.  349. 

2  Atchison  etc.  K.  R.  Co.  v.  United  States,  15  Ct.  of  Cl.  140. 


EXAMINATION  OF  EXPERT  WITNESSES.  61 

knowledge,  but  should  be  governed  by  the  evidence  adduced, 
they  may,  and,  to  act  intelligently,  they  must  judge  of  the 
weight  and  force  of  that  evidence  by  their  own  general 
knowledge  of  the  subject  of  inquiry.  If,  for  example,  the 
question  were  as  to  the  damages  sustained  by  a  plaintiff 
from  a  fracture  of  his  leg  by  the  carelessness  of  a  defendant, 
the  jury  would  ill  perform  their  duty,  and  probably  come 
to  a  wrong  conclusion,  if  controlled  by  the  testimony  of  the 
surgeons,  not  merely  as  to  the  injury  inflicted,  but  as  to  the 
damages  sustained,  they  should  ignore  their  own  knowledge 
and  experience  of  the  value  of  a  sound  limb.  *  They 

should  not  have  been  instructed  to  accept  the  conclusions  of 
the  professional  witnesses  in  place  of  their  own,  however 
much  that  testimony  may  have  been  entitled  to  consider- 
ation. The  judgment  of  witnesses,  as  a  matter  of  law,  is 
in  no  case  to  be  substituted  for  that  of  the  jurors."1 

§  39.  Instructions  to  Jury  as  to  the  Nature  and  Weight 
of  Expert  Testimony. — While  the  jury  must  determine  the 
credibility  of  the  experts  and  the  weight  of  their  testimony, 
and  to  this  end  must  be  left  at  liberty  to  exercise  their  own 
judgment,  independent  of  any  positive  direction  of  the 
court,  yet  it  has  been  held  that  a  mere  expression  of  opinion 
as  to  the  weight  of  the  evidence,  which  still  allows  the  jury 
to  be  guided  and  governed  by  their  own  convictions,  forma 
no  proper  ground  for  an  exception.2  In  the  case  last  cited, 
Mr.  Justice  Daniels  says  :  "  That  may  be  proper,  and  even 
necessary  under  certain  circumstances,  to  enable  the  jury  to 
give  appropriate  consideration  to  evidence  requiring  their 
judgment.  The  evidence  of  witnesses  who  are  brought 
upon  the  stand  to  support  a  theory  by  their  opinions,  is 
justly  exposed  to  a  reasonable  degree  of  suspicion.  They 
are  produced,  not  to  swear  to  facts  observed  by  them,  but 
to  express  their  judgment  as  to  the  effect  of  those  detailed 
by  others,  and  they  are  selected  on  account  of  their  ability 
to  express  a  favorable  opinion,  which  there  is  great  reason 

1  Head  v.  Hargrave,  14  Cent.  Law  J.  388,  389. 
*  Templeton  v.  People,  10  Hun,  (X.  Y.)  357. 


62  EXPERT  TESTIMONY. 

to  believe,  is,  in  many  instances,  the  result  alone  of  employ- 
ment, and  the  bias  arising  out  of  it.  Such  evidence  should 
be  cautiously  accepted  as  the  foundation  of  a  verdict,  and 
it  forms  a  very  proper  subject  for  the  expression  of  a 
reasonably  guarded  opinion  by  the  court.  That  is  often 
necessary  to  prevent  the  jury  from  being  led  astray,  by  giving 
too  much  weight  to  evidence  really  requiring  to  be  sus- 
piciously watched,  and  which,  in  many  instances,  has  induced 
unwarranted  verdicts,  discreditable  to  the  administration  of 
justice,  as  well  as  exceedingly  detrimental  to  the  public  in- 
terest." The  following  instruction,  however,  was  held  in 
this  case  to  be  erroneous  :  "  There  is  no  more  reliance  to 
be  placed  upon  it  (the  testimony  of  the  expert)  than  upon 
the  testimony  of  any  other  person  in  this  case.  I  regard 
you  gentlemen  of  the  jury  as  equally  skilled,  and  as  able  to 
decide  from  the  evidence,  whether  or  not  the  prisoner  was 
insane  as  Dr.  Clymer."  In  a  recent  case  in  North  Carolina, 
an  instruction  was  sustained,  charging  the  jury  that  the  law 
attached  peculiar  importance  to  the  opinions  of  medical 
men  who  have  had  opportunity  of  observation  upon  ques- 
tions of  mental  capacity.1 

§  40.  Instructions  to  the  Jury  as  to  the  Nature  and 
Weight  of  Expert  Testimony  —  The  Subject  Continued. — 
In  Iowa  the  following  instruction  has  been  sustained  :  "  Ev- 
idence of  this  character  (comparison  of  handwriting  by 
experts)  has  been  introduced  in  the  case  at  bar,  and  it  will 
be  for  you  to  say  how  much  weight  shall  be  given  to  such 
testimon}7",  taking  into  consideration  the  amount  of  skill 
possessed  by  the  witnesses.  But  while  it  is  proper  to  con- 
sider such  evidence,  and  to  give  to  it -such  weight  as  you 
may  think  it  justly  entitled,  yet  it  is  proper  to  remark  that 
it  is  of  the  lowest  order  of  evidence,  or  evidence  of  the  most 
unsatisfactory  character.  It  cannot  be  claimed  that  it 
ought  to  overthrow  positive  and  direct  evidence  of  credible 
witnesses  who  testify  from  their  personal  knowledge,  but  it  is 
most  useful  in  cases  of  conflict  between  witnesses  as  corrob- 

1  Flyut  T.  Bodenhamer,  80  X.  C.  :0>. 


EXAMINATION  OF  EXPERT  WITNESSES.  63 

orating  witnesses."  Counsel  claimed  that  the  above  in- 
struction was  erroneous,  as  it  practically  destroyed  expert 
evidence,  by  taking  from  it  the  force  and  weight  given  to  it 
by  law.  But  in  sustaining  the  instruction  the  court  says  : 
"  The  observation  and  experience  of  daily  life,  as  well  as  in 
the  administration  of  justice  in  the  courts  of  law,  must  be 
applied  by  judges  and  jurors  to  enable  them  to  decide  to 
what  extent  the  mind  should  be  influenced  by  evidence  sub- 
mitted to  them.  *  *  *  The  effect,  then,  which  all  evi- 
dence has  upon  the  mind  is  determined  by  observation  and 
experience,  the  only  original  instructors  of  wisdom.  These 
teach  that  the  evidence  of  experts  is  of  the  very  lowest 
order,  and  of  the  most  unsatisfactory  character.  We  be- 
lieve that  in  this  opinion  experienced  laymen  unite  with 
members  of  the  legal  profession."  l  And  in  Vermont  the 
Supreme  Court  of  that  State  declared,  that  if  the  trial  judge 
had  "  told  the  jury,  what  to  be  sure  is  unusual,  as  expressed 
in  an  early  case,  that  it  (testimony  of  experts  in  hand- 
Avriting)  was  entitled  to  but  little  weight  as  proof  of  the 
disputed  fact,  but,  after  all  leaving  it  for  them  to  weigh 
and  consider,  it  would  not  have  been  an  error."  2  So,  in  a 
case  which  involved  a  question  as  to  the  permanency  of  a 
person's  loss  of  vision,  where  one  of  the  experts  testified 
that  in  his  examination  of  the  eye  he  had  not  used  the 
opthalmoscope,  or  stereoscope,  while  the  other  had  em- 
ployed both  instruments  and  reached  a  different  conclusion, 
it  was  held  to  be  error  to  refuse  the  following  request  to 
charge:  "Considering  the  extraordinary  character  of  the 
injuries  alleged  in  this  case,  and  the  great  difficulty  attend- 
ant upon  their  proper  investigation,  great  weight  should  be 
given  by  the  jury  to  the  opinion  of  scientific  witnesses,  ac- 
customed to  investigate  the  causes  and  effect  of  injuries  to 
the  eye,  and  a  distinction  should  be  made  in  favor  of  the 
opinion  of  those  accustomed  to  use  the  most  perfect  instru- 
ments and  processes,  and  who  are  acquainted  with  the  most 

1  Whittaker  v.  Parker,  42  Iowa,  586.     See,  too,  Borland  v.  Wahvrath, 
33  Iowa,  133. 

2  Pratt  v.  Rawson,  40  Vt.  183,  188. 


64  EXPERT  TESTIMONY. 

recent  discoveries  in  science,  and  most  approved  methods  of 
treatment  and  investigation."  l 

§  41.  Instructions  to  the  Jury  as  to  the  Nature  and 
Weight  of  Expert  Testimony  —  The  Subject  Continued. — 

The  following  has  been  held  an  erroneous  instruction: 
"  That  in  questions  involving  science  and  skill,  the  opinions 
of  scientific  men  in  professions  or  pursuits,  to  which  such 
questions  may  pertain,  are  authoritative,  and  in  all  doubtful 
cases  in  which  such  questions  are  involved  should  control 
the  jury.'-'  The  Supreme  Court  in  reviewing  the  instruc- 
tion declared  that  "  such  opinions  are  to  be  received  and 
treated  by  the  jury  like  any  other  evidence  in  the  cause."  2 
The  same  court  in  a  subsequent  case  held  the  following  in- 
struction erroneous.  It  illustrates  the  other  extreme  to 
which  trial  courts  are  apt  to  go :  "  Some  persons  have  been 
introduced  as  experts  on  the  question  of  unsoundness  (of 
testator's  mind).  These  witnesses  gave  opinions  based 
upon  hypothetical  cases.  These  opinions  are  of  no  value, 
unless  the  hypothetical  cases  put  to  the  experts  are  fully 
sustained  by  the  evidence  given  in  the  cause.  If  the  hy- 
pothetical cases  are  fully  proved  by  the  evidence,  and  the 
experts  understand  the  subject  upon  which  their  opinions 
are  given,  those  opinions  ought  to  have  some  weight,  but 
the  testimony  of  experts  is  usually  of  very  little  value  in 
determining  the  sanity  or  insanity  of  a  party.  The  opinions 
of  experts  are  not  so  highly  regarded  now  as  formerly  ; 
for,  while  the}'  sometimes  afford  aid  in  the  determination 
of  facts,  it  often  happens  that  experts  can  be  found  to  tes- 
tify to  any  theory,  however  absurd  ;  and  they  frequently 
come  with  biased  minds,  prepared  to  support  the  cause  in 
which  they  are  embarked.  I  do  not  wish  to  be  understood 
that  the  witnesses  called  in  this  case  are  biased.  You  are 
the  judges  of  that  matter." 

The  court  held  that  this  instruction  underrated  too  much 
the  value  of  the  testimonv  of  experts  as  a  class.  And  it 
declared  its  belief  that  the  trial  court  was  mistaken  in  say- 

1  Tinney  v.  New  Jersey  Steamboat  Co.,  12  Abbott's  Pr.  (X.  S.)  1. 

2  Humphries  v.  Johnson.  20  Ind.  190. 


EXAMINATION  OF  EXPERT  WITNESSES.  65 

ing  that  "the  testimony  of  experts  is  usually  of  very  little 
value  in  determining  the  sanity  or  insanity  of  a  party."  As 
to  the  value  of  expert  testimony,  the  court  declares  it  "  de- 
pends as  much  upon  all  the  facts  and  circumstances  con- 
nected with  each  particular  case  as  that  of  any  other  class 
of  witnesses.  It  is  for  the  court  first  to  decide  whether  a 
witness  is  competent  to  testify  as  an  expert ;  but  when  per- 
mitted to  testify,  an  expert  stands  substantially  on  the  same 
footing  as  any  other  witness  as  to  credibility.  His  testi- 
mony may  be  valuable,  or  it  may  not  be,  depending  upon 
the  manner  in  which  it  may  be  able  to  withstand  the 
usual  tests  of  credibility  which  may  be  app  ied  to  it."  l 
And  the  same  court  in  a  still  more  recent  case  has  also  held 
the  following  instruction  erroneous,  as  giving  too  much 
prominence  to  experience:  "The  less  experience  a  profes- 
sional witness  has,  and  the  less  satisfactory  the  reasons  for 
his  opinion,  the  less  weight  should  the  opinion  have.  As 
to  all  the  witnesses,  whether  medical  or  not,  you  are  the 
exclusive  judges  of  the  weight  to  be  given  to  the  evi- 
dence." 2 

§  42.  Tlie  Value  and  Weight  of  Expert  Testimony. — We 
have  collected  in  the  appendix  the  expressions  of  judicial 
opinion  as  to  the  value  attaching  to  the  testimony  of  experts. 
It  is  evident  that  the  value  of  expert  testimony  depends  on 
the  learning  and  skill  of  the  expert,  and  on  the  nature  of  the 
subject  of  investigation.  If  the  subject  of  inquiry  relates 
to  the  cause,  nature  or  effect  of  disease,  for  instance,  the 
opinions  of  eminent  or  learned  physicians  would  be  entitled 
to  the  very  highest  consideration.  If,  on  the  other  hand, 
the  subject  of  inquiry  is  the  genuineness  of  a  disputed  signa- 
ture, great  importance  cannot  always  be  attached  to  the  tes- 
timony of  the  experts.  The  value  of  the  testimony  varies 
with  the  circumstances  of  each  case,  and  of  those  circum- 
stances the  jury  must  be  the  judges.  They  must  determine 
whether  great  or  little  weight  is  to  be  accorded  it.  But  in 
all  cases,  the  testimony  of  experts  is  to  be  received  and 

1  Eggers  v.  Eggers,  57  Ind.  461. 

2  Cuneo  v.  Bessoni,  63  Ind.  524. 

(5) 


66  EXPERT  TESTIMONY. 

weighed  with  great  caution.  As  a  judge  in  one  of  the  Irish 
courts  has  expressed  it,  "  such  evidence  ought,  as  all  evi- 
dence of  opinion  ought,  to  be  received  and  considered  with 
narrow  scrutiny,  and  with  much  caution."1  And  no  error 
would  be  found  with  an  instruction  which  should  merely 
caution  the  jury  as  to  such  evidence.  Indeed,  it  would  seem 
to  be  the  duty  of  the  trial  court  in  all  cases,  to  give  the  jury 
to  understand  that  they  must  consider  all  such  testimony 
with  caution.  It  would  seem  to  be  as  proper  in  such  cases 
to  caution  the  jury,  as  it  is  conceded  to  be  to  caution  them 
as  to  the  testimony  of  detectives  and  police  officers,  or  as  to 
the  testimony  of  the  relatives  of  an  accused  person.  It  may 
also  be  highly  proper,  too,  in  many  cases,  to  remind  the  jury 
that  the  weight  of  the  testimony  of  experts  does  not  depend 
so  much  on  the  number  of  the  witnesses,  as  upon  their 
capacity,  their  opportunities  for  observation,  the  unpreju- 
diced state  of  their  minds,  and  the  nature  of  the  facts.2 
But  cautions  to  a  jury  against  the  testimony  of  witnesses 
should,  in  all  cases,  be  very  guarded,  as  they  may  easily 
become  erroneous  and  misleading.3  . 

1  M'Fadden  v.  Murdock,  1  Irish  E.  (C.  L.)  211,  218. 

2  Clark  v.  Fisher,  1  Paige,  Ch.  (N.  Y.)  171 ;  s.  c.  19  Am.  Decis.^402. 
8  See  Grand  Rapids  etc.  E.  E.  Co.  v.  Martin,  41  Mich.  672. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  67 


CHAPTER  IV. 


EXPERT  TESTIMONY  IN  MEDICINE,  SURGERY  AND  CHEMISTRY. 

SECTION. 

43.  Competency  of  Physicians  to  Testify  as  Experts. 

44.  Competency  of  Physicians  to  Testify  as  Experts  — The  Subjec 

Continued. 

45.  Disqualifications   Arising   from    Information    Acquired    .while 

Attending:  Patient. 

4G.    Cases  in  which  Physicians  may  Testify,  notwithstanding  the  Pro- 
hibitory Statutes. 

47.  Opinions  Based  on  Statements  made  out  of  Court,  and  not  under 

Oath. 

48.  Opinions  of  Physicians  Based  in  part  on  Declarations  of  Patients. 

49.  Opinions  as  to  the  Condition  of  a  Patient. 

50.  Opinions  as  to  Cause  of  Death. 

51.  The  Xature  and  Symptoms  of  Disease. 

52.  Who  are  Competent  to  Express  Opinions  in  such  cases. 

53.  Xatnre  and  Effect  of  Wounds. 

54.  Character  of  Instrument  with  which  Wound  was  Produced. 

55.  Who  are  Competent  to  Express  Opinions  as  to  Instrument  used. 

56.  Opinions  of  Medical  Experts  as  to  Mental  Condition. 

57.  The  Rule  in  Massachusetts. 

58.  Roman  Catholic  Priest  an  Expert  as  to  Sanity. 

59.  Mode  of  Examination  as  to  Sanity. 

GO.  Evidence  Bearing  on  Question  of  Insanity. 

Gl.  Opinions  of  Non-Professional  Witnesses  as  to  Mental  Condition. 

62.  This  Subject  Continued. 

63.  Rape,  Abortion  and  Pregnancy. 
G4.  Opinions  in  Miscellaneous  Cases. 

65.  Opinions  of  Medical  Experts  in  Malpractice  Cases. 

66.  Right  to  Order  an  Examination  of  the  person  by  Medical  Experts 

in  cases  of  alleged  Impotency. 

67.  Who  should  be  Appointed  to  make  the  Examination. 

68.  When  Compulsory  Examination  in  such  cases  will  not  be  ordered. 

69.  Summoning  Experts  to  Assist  in  Determining  the  Proper  Inter- 

rogatories. 


68  EXPERT  TESTIMONY. 

70.  The  Subject  of  Inquiry.    Structural  Defect.    Impracticability  of 

Consummation. 

71.  The  Testimony  of  the  Experts  in  such  Cases  to  be  Received  with 

Caution. 

72.  Defraying  the  Expenses  of  the  Examination  by  the  Expert. 

73.  Compulsory  Examination  in  Criminal  Cases. 

74.  Compulsory  Examination  in  Criminal  Cases  —  The  Subject  Con- 

tinued. 

75.  Compulsory  Examination  in  Actions  for  Damages. 
.76.    Detection  of  Poisons  by  Chemists. 

77.  Chemical  Analysis  of  Poison  not  necessary  when. 

78.  Chemical  Analysis  of  Contents  of  Stomach. 

79.  Order  of  Research  in  Analysis  for  Poisons. 

80.  Chemical  and  Microscopic  Examination  of  Blood. 

81.  Whether  Ordinary  Witnegses  may  Testify  as  to  Blood  Stains. 

82.  Blood  Stains— Proper  Question  Concerning. 

83.  Other  Cases  in  which  the  Opinions  of  Chemists  have  been  received. 

84.  Diseases  in  Animals— Qualifications  of  Expert. 

§   43.   Competency  of   Physicians  to  Testify  as  Experts. 

— The  principle  is  well  established  that  physicians  and  sur- 
geons of  practice  and  experience,  are  experts  in  medicine 
and  surgery,  and  that  their  opinions  are  admissible  in  evi- 
dence upon  questions  that  are  strictly  and  legitimately  em- 
braced in  their  profession  and  practice.1  Persons  are  pre- 
sumed to  understand  questions  appertaining  to  their  own 
profession.2  As  expressed  in  a  recent  case  in  South 
Carolina  a  physician  is  "in  law  an  expert  as  to  all  mat- 
ters embraced  within  the  range  of  his  profession." 3 
In  the  absence  of  any  statutory  provision  to  the  con- 
trary, it  does  not  seem  to  be  necessary  that  they  should 
be  graduates  of  any  medical  college,  or  have  a  license 
to  practice  from  any  medical  board,  in  order  to  render  them 
competent  to  testify  as  experts  in  relation  to  matters  con- 
nected with  their  profession.*  If  it  is  shown  that  the 
witness  is  a  practicing  physician  or  surgeon,  it  is  sufficient 
evidence  that  he  is  competent  .to  express  an  opinion  upon 

1  Hathaway  Adm'r  v.  National  Life  Ins.  Co.,  48  Vt.  335,  351 ;  De  Phue 
v.  State,  44  Ala.  39;   Livingston  v.  Commonwealth,  14  Grattan  (Va.) 
592 ;  Bird  v.  Commonwealth,  21  Grattan  (Va.)  800. 

2  Jones  v.  White,  11  Humph.  (Tenn.)  268. 

3  State  v.  Clark,  15  S.  C.  (N.  s.)  403,  408. 

4  New  Orleans  etc.  R.  R.  Co.  v.  Allbritton,  38  Miss.  242. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  69 

a  medical  question.1  But  in  Wisconsin,  the  legislature 
has  interposed,  and  enacted  a  law  providing  that  "no 
person  practicing  physic  or  surgery  shall  have  the  right  *  * 
to  testify  in  a  professional  capacity  as  a  physician  or 
surgeon  in  any  case,  unless  he  shall  have  received  a  diploma 
from  some  incorporated  medical  society  or  college,  or  shall 
be  a  member  of  the  State  or  some  county  medical  society, 
duly  organized  in  this  State."2  The  mere  fact,  that  a  person 
was  by  education  a  physician,  is  not  deemed  in  itself  suffi- 
cient to  justify  his  admission  as  an  expert,  provided  he  never 
practiced  his  profession.3  His  competency,  it  is  said,  should 
be  shown  "from  his  study  and  experience  in  medicine."4 
But  it  is  not  to  be  supposed  that  a  physician  and  surgeon, 
who  shows  himself  otherwise  qualified,  is  to  be  considered 
as  disqualified  by  the  fact  that  at  the  time  of  giving  his  tes- 
timony, he  is  not  in  full  practice.  That  merely  goes  to  his 
credit,  and  is  for  the  consideration  of  the  jury  in  weighing 
his  testimony.6  Hence,  a  witness  was  held  competent  to 
testify  as  a  medical  expert,  who  stated  that  he  had  attended 
a  course  of  medical  lectures,  had  obtained  a  license  from 
the  State,  and  had  practiced  as  a  physician  for  a  year,  when 
he  abandoned  the  medical  profession  for  that  of  the  law, 
which  had  been  his  profession  for  the  last  sixteen  years,  but 
that  he  had  continued  to  read  medical  works,  had  kept  up 
with  the  improvements  made  in  the  science  of  medicine, 
and  felt  competent  to  express  a  medical  opinion  upon  the 
subject  of  inquiry.6  Although  the  witness  had  once  practiced 
medicine,  it  appears  that  the  court  in  this  case  inclined  to  the 
opinion  that  he  would  have  been  competent  had  that  fact 
not  been  shown,  for  they  say :  "If  one  asserts  an  ability 
to  give  correct  opinions  upon  any  art  or  science,  from  an 


1  Wisconsin  Kev.  Stat.  (1878)  pr.  440,  §  1436. 

"Livingston  v.  Commonwealth,  14  Gratt.  (Va.)  592;  Washington  v. 
Cole,  G  Ala.  212. 

»  Fairchild  v.  Bascomb,  35  Vt.  410. 
*  Polk  v.  State,  36  Ark.  117, 123. 

5  Roberts  v.  Johnson,  58  X.  Y.  613. 

6  Tullis  v.  Kidd,  12  Ala.  648,  650. 


70  EXPERT  TESTIMONY. 

acquaintance  with  the  subject,  acquired  by  observation  and 
study,  we  cannot  perceive  on  what  ground  he  can  be  re- 
jected because  he  has  not  been  in  the  actual  practice  of  his 
profession."  It  is  not  necessary  that  a  physician  should 
have  made  the  particular  disease  involved  in  any  inquiry,  a 
specialty,  in  order  to  make  his  testimony  admissible  as  being 
that  of  an  expert.1  But  if  he  has  devoted  himself  exclu- 
sively to  one  branch  of  his  profession,  and  has  had  no 
practical  experience  in  that  subject  matter  to  which  he  is 
called  to  testify,  as  if  an  oculist  is  called  to  testify  as  an 
expert  in  insanity,  his  testimony  would  be  inadmissible.2 
Hence,  it  has  been  held  that  a  physician  was  incompetent  to 
express  an  opinion  upon  the  question  of  insanity,  whose 
habit,  it  had  been,  when  his  patients  required  medical  treat- 
ment for  insanity,  to  call. in  the  services  of  a  physician  who 
had  made  a  special  study  of  mental  diseases,  or  to  recom- 
mend their  removal  to  a  hospital  for  the  insane.3 

§  44.  Competency  of  Physicians  to  Testify  as  Experts — 
The  Subject  Continued. — So  in  a  recent  case  in  Mississippi, 
the  court  declared,  that  a  medical  practice  confined  to  the 
treatment  of  ordinary  diseases,  does  not  qualify  a  physician 
to  testify  as  an  expert  upon  insanity  upon  hypothetical  in- 
terrogations as  to  supposed  facts,  of  which  he  had  no 
personal  knowledge.4  But  his  testimony  is  admissible  if  he 
has  a  personal  knowledge  of  the  facts,6  or  if  he  has  studied 
somewhat  the  subject  of  psychological  medicine.6  It  has 
been  held  that  a  physician  who  had  been  in  practice  for 
several  years,  but  who  had  no  experience  as  to  the  effect 
upon  health  of  breathing  illuminating  gas,  could  not  testify 
in  relation  thereto,  as  an  expert.7  The  fact  that  he  was  a 

*  Hathaway  v.  National  Life  Ins.  Co.,  48  Vt.  335,  351;  State  v.  Red- 
dick,  7  Kans.  143. 

«  Fairchild  v.  Bascomb,  35  Vt.  410. 

3  Commonwealth  v.  Rice,  14  Gray  (Mass.),  335. 

4  Russell  v.  State,  53  Miss.  367. 

*  Baxter  v.  Abbott,  7  Gray  (Mass.),  71. 

'-State  v.  Reddick,  7  Kans.  143;  Davis  v.  State,  35  Ind.  496.  See  too 
Bitner  v.  Bitner,  65  Penn.  St.  347,  and  Pidcock  v.  Potter,  68  Penn.  St. 
347. 

7  Emerson  v.  Lowell  Gas  Light  Co.,  6  Allen,  14(3. 


EXPERT  TESTIMONY  IX  MEDICINE,  ETC.  71 

physician,  it  was  said,  did  not  necessarily  give  him  any 
knowledge  of  gas  and  its  effects  upon  health  ;  and  an  expe- 
rience in  attending  other  persons  who  were  alleged  to  have 
been  made  sick  by  breathing  gas  from  the  same  leak,  was 
pronounced  insufficient.  It  has  been  held  in  New  Jersey, 
that  a  physician  may  be  examined  as  to  injuries  done  to  the 
eyes  of  a  party  by  violence,  although  he  may  not  be  a  sur- 
geon or  an  oculist.1  The  case  was  decided  upon  the  statute 
of  that  State,  which  requires  all  physicians  to  be  skilled  in 
both  medicine,  surgery  and  anatomy.  A  practicing  physician 
whose  knowledge  of  the  particular  subject  of  inquiry  was 
derived  from  study  alone,  has  been  held  competent  to  express 
an  opinion  as  an  expert.2  When  a  medical  witness  declines 
to  express  an  opinion  on  the  ground  of  the  want  of  sufficient 
information,  it  is  improper  to  ask  him  for  his  "impres- 
sions." 3 

§  45.  Disqualifications  Arising'  from  Information  Ac- 
quired while  Attending  Patient. — In  the  absence  of  any 
statutory  provision  to  the  contrary,  it  is  well  settled  that  a 
physician  or  surgeon  may  be  compelled  to  disclose  any  com- 
munications made  to  him  in  professional  confidence.4  A 
physician,  therefore,  would  not  be  incompetent  at  the  com- 
mon law,  to  testify  to  a  professional  opinion  based  on  facts 
which  may  have  been  learned  by  him  from  such  communi- 
cations. 

But  in  several  of  the  States  statutes  have  been  enacted 
which  have  abrogated  the  common  law  rule  on  this  subject. 
In  Wisconsin  the  statute  is  that  ' '  no  person  duly  authorized 
to  practice  physic  or  surgery,  shall  be  compelled  to  disclose 
any  information  which  he  may  have  acquired  in  attending 

1  Castner  v.  Sliker,  33  X.  J.  L.  95;  s.  c.,  ib.  507. 

2  Taylor  v.  Grand  Trunk  R.  R.  Co.,  48  X.  H.  304.    The  opinion  ex- 
pressed in  this  case,  was  that  injuries  from  railroad  accidents  were  more 
severe  than  from  other  causes,  although  bearing  the  same  external 
appearance. 

3  Higbee  v.  Guardian  Mutual  Life  Ins.  Co.,  66  Barb.  462,  467. 

4  Stephens'  Dig.  of  Evidence,  Art.  117;   Dutchess  of  Kingston's  Case, 
Hargr.  St.  Tr.  243,  20  How.  St.  Tr.  613,  614;  Ashland  v.  Marlborough,  99 
Mass.  48;  Barber  v.  Merriam,  11  Allen,  322;  People  .v.  Stout,  3  Parker 
Cr.  Cas.  670. 


72  EXPERT  TESTIMONY. 

any  patient  in  a  professional  character,  and  which  informa- 
tion was  necessary  to  enable  him  to  prescribe  for  such  patient 
as  a  physician,  or  to  do  any  act  for  him  as  a  surgeon."1 
This  provision  is  distinguished  from  the  ones  adopted  in 
New  York,2  Michigan,3  Iowa,4  Minnesota,5  Missouri,6  Ohio,7 
Indiana,8  and  Nebraska,9  in  which  it  is  provided  that  the  wit- 
ness shall  not  be  competent,  or  shall  not  be  allowed  to  make 
the  disclosure,  while  in  Wisconsin  the  language  is  that  he 
shall  not  be  compelled  to  make  the  disclosure.  But  in  Iowa, 
Indiana  and  Minnesota,  his  testimony  may  be  received  with 
the  consent  of  the  patient ;  and  in  Minnesota  the  prohibition 
is  confined  to  civil  cases. 

§  46.  Cases  in  which  Physicians  may  Testify  Notwith- 
standing the  Prohibitory  Statutes. —  The  statutory  pro- 
visions noticed  in  the  preceding  section  were  undoubtedly 
designed  for  the  exclusive  protection  of  the  patient,  and  al- 
though the  statutes  declare  that  the  physician  ' '  shall  not  be 
allowed  "  to  make  the  disclosure,  it  is  not  believed  that  they 
will  be  construed  so  as  to  prejudice  the  public  interests, 
provided  the  disclosure  to  be  obtained  manifestly  works  no 
injustice  to  the  spirit  and  intent  of  the  law.  In  a  recent 
case  in  New  York,  where  a  prisoner  was  charged  with  mur- 
der committed  by  the  administration  of  arsenic,  the  State 
called  as  a  witness  the  physician  who  attended  the  deceased 
in  a  professional  capacity,  and  inquired  of  him  concerning 
the  symptoms  exhibited  by  the  deceased,  and  what  he  had 
learned  concerning  his  condition  during  the  time  of  his  at- 
tendance upon  him.  Counsel  for- the  prisoner  objected  that 
the  examination  was  contrary  to  the  statute,  but  the  Su- 
preme Court  overruled  the  objection  for  the  reason  that  it 

1  Wisconsin  Kev.  Stat.  (1878)  p.  992,  §  4075. 

2  Code,  §  834, 

8  Comp.  Laws,  §  5943. 

<  Code  of  1873,  p.  565,  §  3643. 

*  Stat.  of  1878,  p.  793,  §  10. 

6  1  Rev.  Stat.  (1879)  p.  690,  §  4017. 

'  2  Rev.  Stat.  (1880)  p.  1278,  §  5241. 

8  2  Rev.  Stat.  (1876)  p.  134,  §  2. 

9  Gen.  Stat.  (1873)  p.  582,  §  333. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  73 

was  not  within  the  spirit  and  intent  of  the  statute,  although 
within  the  letter."  1 

The  matter  was  taken  to  the  Court  of  Appeals,  and  the 
judgment  of  the  Supreme  Court  affirmed,  the  court  saying: 
"  That  the  purpose  for  which  the  aid  of  this  statute  is  in- 
voked in  this  case,  is  so  utterly  foreign  to  the  purposes  and 
objects  of  the  act,  and  so  diametrically  oppos-ed  to  any  in- 
tention which  the  legislature  can  be  supposed  to  have  had 
in  the  enactment,  so  contrary  to  and  inconsistent  with  its 
spirit,  which  most  clearly  intended  to  protect  the  patient, 
and  not  to  shield  one  who  is  charged  with  his  murder,  that 
in  such  a  case  the  statute  is  not  to  be  so  construed  as  to  be 
used  as  a  weapon  of  defense  to  the  party  so  charged,  instead 
of  a  protection  to  his  victim."  '2 

The  same  subject  was  under  discussion  in  a  subsequent 
case  which  involved  the  mental  capacity  of  a  testator.  The 
surrogate  excluded  the  testimony  of  a  physician  who  at- 
tended the  testator,  and  who  stated  that  all  his  knowledge 
was  derived  from  what  he  observed  while  attending  de- 
ceased professionally.  The  Supreme  Court  held  that  the 
testimony  was  admissible.  That  it  did  not  involve  the  dis- 
closure of  any  confidential  information  acquired  in  his  pro- 
fessional capacity,  but  of  facts  which  were  open  to  the  ob- 
servation of  any  person  who  had  seen  or  conversed  with  the 
testator.3  The  same  question  has  been  considered  in  Mich- 
igan, where  an  objection  was  made  against  allowing  the  pro- 
ponents of  a  will  to  examine  a  physician,  for  the  purpose  of 
showing  the  condition  of  the  decedent  while  he  was  treating 
him  professionally.  The  court  held 4  that  while  the  statute 
covered  information  acquired  by  observation  while  the  phy- 
sician was  in  attendance  upon  his  patient,  as  well  as  com- 
munications made  by  the  patient  to  him,5  yet  the  rule  it 

1  Pierson  v.  People,  25  X.  Y.  Sup.  Ct.  239. 

2  Piersou  v.  People,  79  X .  Y.  434. 

3  Staunton  v.  Parker,  26  X.  Y.  Sup.  Ct.  56.    See  also  People  v.  Stout, 
3  Parker  Cr.  Cas.  670;  Grattan  v.  Metropolitan  Life  Ins.  Co.,  31  N.  Y. 
Sup.  Ct.  43. 

4  Fraser  v.  Jennison,  42  Mich.  200,  224. 

5  Briggs  v.  Briggs,  20  Mich.  34. 


74  EXPERT  TESTIMONY. 

established  was  one  of  privilege  for  the  protection  of  the 
patient,  which  he  might  waive  if  he  saw  fit ; l  and  that  what 
he  might  do  in  his  lifetime,  those  who  represented  him  af- 
ter his  death  might  also  do  for  the  protection  of  the  inter- 
ests they  claimed  under  him.  In  a  case  in  the  St.  Louis 
Court  of  Appeals,  arising  under  the  Missouri  statute,  that 
court  declared  that  objective  signs,  which  are  obvious  on  an 
observation  of  a  patient  by  the  physician,  but  which  imply 
no  disclosure  on  the  part  of  the  patient,  as  well  as  symp- 
toms which  are  apparent  before  the  patient  submits  himself 
to  any  examination,  are  not  to  be  excluded  under  the  statute. 
"It  is  not  an  objection,"  remarked  the  court,  "that  the 
trained  eye  of  the  physician  might  thus  detect  sure  signs  of 
a  given  disease."  2  The  same  court  in  another  case,  has 
declared  that  where  the  whole  testimony  of  a  physician  is 
excluded  on  the  ground  that  he  could  not  separate  the  im- 
pressions received  by  him,  growing  out  of  the  relation  of 
physician  and  patient,  and  those  received  by  observation  of 
the  patient  when  that  relation  did  not  exist,  it  is  necessary 
that  the  facts  justifying  such  exclusion  should  appear.  The 
statement  of  the  physician  that  he  is  unable  to  distinguish 
between  such  impressions,  is  not  sufficient.  And  the  fact 
that  such  discrimination  can  be  made  by  the  witness,  may 
be  developed  on  a  proper  cross-examination.3 

§  47.  Opinions  Based  on  Statements  made  out  of  Court 
and  not  under  Oath. —  The  rule  is  that  an  expert  cannot  be 
allowed  to  give  his  opinion  based  upon  statements  made  to 
him  by  parties  out  of  court  and  not  under  oath.4  His 
opinion  to  be  admissible,  must  be  founded  either  on  his 
own  personal  knowledge  of  the  facts,  or  else  upon  an 
hypothetical  question.5  Hence  the  opinion  of  a  physician, 
called  in  consultation  with  the  attending  physicians,  cannot 
be  received  if  based  upon  declarations  made  to  him  by  such 

1  Scripps  v.  Foster.  41  Mich.  742. 

2  Linz  v.  Mass.  Mut.  Life  Ins.  Co.,  8  Mo.  App.  369. 

3  Gartside  v.  Conn.  Mut.  Life  Ins.  Co..  8  Mo.  App.  593. 

4  Hurst  v.  The  C.  K.  I.  &  P.  E.  R.  Co.,  49  Iowa,  76,  79. 

5  Hunt  v.  State,  9  Tex.  Ct.  of  App.  166. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  75 

physicians,  or  by  the  wife  and  nurse  of  the  patient  as  to  his 
previous  symptoms  or  condition.1 

§  48.  Opinions  of  Physicians  Based  in  part  on  Declara- 
tions of  Patients. — But  the  principle  stated  in  the  preceding 
section,  does  not  apply  to  the  opinions  of  a  physician  or 
surgeon,  based  in  part  on  statements  made  by  the  patient 
himself  to  the  physician,  to  enable  the  latter  to  determine 
upon  the  proper  course  of  treatment.  Upon  this  point  the 
Supreme  Court  of  Massachusetts  says:  "  The  opinion  of 
a  surgeon  or  physician  is  necessarily  formed  in  part  on  the 
statements  of  his  patient,  describing  his  condition  and  symp- 
toms, and  the  causes  which  have  led  to  the  injury  or  disease 
under  which  he  appears  to  be  suffering.  This  opinion  is 
clearly  competent  as  coming  from  an  expert.  *  *  The 
existence  of  many  bodily  sensations  and  ailments  which  go 
to  make  up  the  symptoms  of  disease  or  injury,  can  be 
known  only  to  the  person  who  experiences  them.  It  is  the 
statement  and  description  of  these  which  enter  into,  and 
form  part  of  the  facts  on  which  the  opinion  of  an  expert,  as 
to  the  condition  of  health  or  disease,  is  founded."2  In  a 
case  in  the  Supreme  Court  of  Illinois,  it  was  said  that  a 
physician  must  necessarily,  in  forming  his  opinion,  be,  to 
some  extent,  guided  by  the  statements  of  his  patient,  and 
that  the  opinion  of  an  expert,  founded  in  part  upon  such 
data,  may  be  received  in  evidence.3  In  the  same  case,  the 
court  held  that  the  physician  might  state  what  the  patient 
said  in  describing  his  condition,  if  spoken  under  circum- 
stances freeing  it  from  suspicion  of  having  been  spoken  with 
reference  to  future  litigation.  A  similar  ruling  has  been 
lately  made  in  New  Jersey,  it  being  held  that  the  declara- 
tions made  to  a  physician  of  bodily  feelings  and  symptoms 
of  pregnancy,  at  the  time  of  his  examination,  were  admissi- 

i  Heald  v.  Thing,  45  Me.  392 ;  Wood  v.  Sawyer,  Phillips  Law  (X.  C.) 
253;  Wetherbee's  Exr's  v.  Wetherbee's  Heirs,  38  Vt.  454;  Hunt  v.  State, 
9  Tex.  Ct.  of  App.  166. 

z  Barber  v.  Merriam,  11  Allen,  322,  324.  See  also  Thompson  v.  Treva- 
nion,  Skinner,  402;  Aveson  v.  Kinnaird,  6  East.  188,  195,  197;  Bacon  v. 
Charlton,  7  Cush.  581,  586;  Denton  v.  State,  1  Swan  (31  Tenn.)  279. 

3  Illinois  Central  R.  R.  Co.  v.  Suttou,  42  111.  438. 


76  EXPERT  TESTIMONY. 

ble  evidence  as  a  part  of  the  facts  on  which  his  opinion  was 
founded.1  The  jury  should  have  these  declarations,  in  order 
that  they  may  know  whether  the  physician's  conclusions 
are  careful,  skillful  and  reliable.  In  a  case  in  Alabama,  the 
court  say  that  the  physician  may  state  the  declarations  of 
the  patient  as  to  his  symptoms  and  condition  during  pre- 
vious similar  attacks,  when  they  form  the  predicate  of  his 
opinion,  in  whole  or  in  part,  as  to  the  duration  and  char- 
acter of  the  disease.2  Upon  this  general  subject,  a  very 
interesting  case  was  decided  by  the  Supreme  Court  of 
Wisconsin  in  1879, 3  and  as  it  is  worthy  of  careful  con- 
sideration, a  somewhat  detailed  statement  of  it  may  not 
be  deemed  inappropriate.  The  action  was  brought  to  re- 
cover damages  for  an  injury  sustained  by  the  negligence  of 
the  defendant,  the  plaintiff  claiming  to  be  lame  in  her  hip 
and  to  suffer  pain  there,  and  that  she  was  unable  to  use  her 
limb  as  she  had  used  it  before  the  accident.  That  it  was 
still  so  weak  and  painful  as  to  render  it  unsafe  for  her  to 
attempt  to  walk  without  the  aid  of  a  crutch.  At  the  sug- 
gestion of  the  defendant,  the  plaintiff  submitted  to  an 
examination  by  experts  for  the  purpose  of  testing  the  truth- 
fulness of  the  claim,  and  of  placing  before  the  jury  her  real 
condition.  The  result  of  the  examination  was  that  the 
experts  found  no  such  appearances  as  would  indicate  lame- 
ness or  pain.  As  one  of  the  experts  testified,  "  the  general 
opinion  was  that  we  could  not  find  anything.  The  only  way 
I  could  tell  that  she  ached,  was  by  what  she  said,  and  how 
she  looked  and  appeared."  Counsel  for  the  defendant 
claimed  that  an  error  was  committed  in  permitting  one  of 
the  experts,  who  testified  as  above,  to  answer  the  following 
questions  : 

"Question.  Do  you  think  that  you  could  tell  whether  or 
not  she  suffered  pain  by  the  movement  of  the  hip,  judging 
from  all  the  examination,  including  what  she  said?  Answer. 
I  think  I  could.  Q.  Now  go  on  and  state  whether,  in  your 

1  State  v.  Geclicke,  43  N.  J.  L.  86. 

2  Ecles  v.  Bates,  26  Ala.  655. 

3  Quaife  v.  Chicago  etc.  K.  R.  Co.,  48  Wis.  513. 


EXPERT  TESTIMONY  IX  MEDICINE,  ETC.  77 

opinion,  she  did  suffer  pain?  A.  She  gave  every  indication 
of  suffering  pain.  Q.  In  your  opinion,  did  she  suffer  pain? 
A.  Yes,  sir ;  that  is  my  opinion,  that  she  did." 

It  was  claimed  that  this  was  in  effect,  asking  the  witness 
whether  he  believed  the  statements  of  the  plaintiff  that  she 
suffered  pain.  The  Supreme  Court  held  that  the  questions 
were  proper.  That  as  the  plaintiff  insisted  upon  the  fact  of 
lameness  and  pain,  it  was  a  question  for  the  experts  whether 
such  pains  and  lameness  were  imaginary,  feigned  or  real ; 
and  that  to  determine  this,  it  was  necessary  to  resort  to 
other  evidences  than  those  to  be  derived  from  the  limb 
itself.  "And  in  such  case,  we  think  it  is  clearly  competent 
for  the  expert  to  give  an  opinion  from  the  general  appear- 
ance, actions  and  looks  of  the  patient,  and  what  she  says  at 
the  time  in  regard  to  her  condition." 

§  49.  Opinions  as  to  the  Condition  of  a  Patient. — A 
physician  may  give  his  opinion  as  to  the  actual  condition  of 
a  patient  whom  he  has  visited,1  or  whose  symptoms  and  con- 
dition have  been  described  by  others.2  He  may  state  his 
belief  that  a  woman  had  been  delivered  of  a  child  within 
three  or  four  days,  and  state  his  opinion  as  to  the  condition 
of  her  mind  at  the  time  of  giving  birth  to  the  child.3  And 
he  may  state  what  effect  certain  drugs  would  have  upon  a 
person  in  a  particular  condition.4  But  it  has  been  held  that 
he  cannot  be  asked  his  opinion,  from  the  condition  of  a 
person  whom  he  had  not  seen,  as  described  by  witnesses 
whose  testimony  was  conflicting,  whether  the  attention  of  a 
physician  was  necessary.5 

§  50.  Opinions  as  to  Cause  of  Death. —  The  opinions  of 
physicians  are  also  received  as  to  the  cause  of  the  death  of  any 
particular  person  ;  such  opinion  being  founded  either  upon 

1  Bush  v.  Jackson,  24  Ala.  273;  Bennett  v.  Fail,  20  Ala.  605. 

2  Livingston  v.  Commonwealth,  14  Gratt.  592 ;   Cooper  v.  State,  23 
Texas,  336,  340. 

3  State  v.  Matthews,  66  X.  C.  113. 

*  Hoard  v.  Peck,  56  Barb.  (N.  Y.)  202,  210.  That  the  opinions  of 
physicians  are  admissible  as  to  the  ordinary  effect  of  medicines,  see  also 
Cooper  v.  State,  23  Texas,  336,  340. 

5  Wilkinson  v.  Mosely,  30  Ala.  562. 


78  EXPERT  TESTIMONY. 

a  personal  knowledge  of  the  facts  of  the  case,  or  upon  a 
statement  of  the  symptoms  of  the  disease  as  detailed  by 
others.1  If  such  opinions  were  not  received,  it  would  be 
impossible  in  many  cases  to  prove  the  cause  and  manner  of 
death ;  especially  in  those  cases  where  there  was  no  one 
present  at  the  time  of  death.  In  such  cases  the  opinions  of 
physicians  and  surgeons  who  have  made  a  post-mortem 
examination  of  the  deceased,  seem  to  be  necessary  in  order 
to  ascertain  the  facts  and  clear  up  the  mystery.  And  where 
the  attending  physicians  were  dead  at  the  time  of  trial,  it 
was  held  competent  for  the  wife  of  the  deceased  to  state  the 
declarations  made  to  her  at  the  time  by  the  physicians,  as 
to  the  cause  of  death.  The  declarations  made  by  them 
were  in  the  ordinary  line  of  their  professional  duty,  and  as 
such  were  receivable  in  evidence  to  establish  the  fact  that 
they  entertained  such  opinion  as  they  stated.2 

In  a  recent  case  in  Arkansas,  where  the  subject  of  inquiry 
was  as  to  the  cause  of  death,  the  court  considered  the  mode 
of  examination  which  should  be  pursued  in  such  cases.  The 
case  was  one  of  alleged  poisoning,  and  it  was  held  not  erro- 
neous to  ask  a  physician  to  describe  the  symptoms  of 
strychnine  in  the  human  system,  and  stop  and  allow  the 
jury  to  compare  the  symptoms  testified  to  by  the  witness 
with  those  given  by  the  expert,  as  to  the  usual  effects  of 
strychnine,  as  affording  some  tendency  to  prove  the  manner 
of  death.  "But,"  said  the  court,  "  although  not  erroneous, 
such  a  course  of  examination  is  eminently  unsatisfactory, 
and  liable  to  mislead.  The  proper  course  is  to  take  the 
opinion  of  the  expert  upon  the  facts  given  in  evidence,  not 
as  to  the  merits  of  the  case,  or  the  guilt  or  innocence  of  the 
prisoner,  but  as  to  the  cause  of  the  death,  so  that  the  jury 
may  first  determine  whether  any  crime  has  been  committed 
by  any  one  at  all."  B 

1  Pitts  v.  State,  43  Miss.  472;  State  v.  Bowman,  78  N.  C.  509;  Shelton 
v.  State,  34  Tex.  666;  State  v.  Baptiste,  26  La.  An.  134, 137;  State  v. 
Smith,  32  Me.  370;  Mitchell  v.  State,  58  Ala.  418;  State  v.  Pike,  65  Me. 
Ill,  114;  Polk  v.  State,  36  Ark.  117,  124. 

*  McNair  v.  National  Life  Ins.  Co.,  20  N.  Y.  Sup.  Ct.  146.  See,  too, 
Stephen's  Dig.  of  Evidence,  Art.  27,  p.  33. 

8  Polk  v.  State,  36  Ark.  117, 124. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  79 

§   51.    The   Nature   and    Symptoms    of    Disease. —  The 

opinions  of  witnesses  skilled  in  the  science  and  practice  of 
medicine,  are  admissible  as  to  the  nature  of  the  disease  a 
•  person  is  afflicted  with,1  and  as  to  how  long  he  has  probably 
been  afflicted  with  it.2  Their  opinions  are  also  received  as 
to  the  severity  and  ordinary  duration  of  the  disease,3  as  well 
as  to  the  probability  of  its  recurrence,4  and  the  effects  upon 
the  general  health.5  They  are  also  permitted  to  testify  as  to 
the  cause  of  the  disease  and  the  remedy  for  it,6  and  to  de- 
scribe the  symptoms  of  any  particular  disease,7  explaining 
its  characteristics,8  and  that  it  is  contagious.9  And  an  at- 
tending physician  may  be  asked  whether  he  ever  saw  any 
appearance  of  a  certain  disease  in  the  family  of  a  particular 
person,10  and  that  before  a  certain  injury  he  considered  the 
person  to  be  a  hearty  and  vigorous  man.11 

1  Napier  v.  Ferguson,  2  P.  &  B.  (New  Brans.)  415;  Polk  v.  State,  36 
Ark.  117, 124;  Tatum  v.  Mohr,  21  Ark.  354;  Hook  v.  Stovall,  26  Ga.  704; 
Flynt  v.  Bodenhamer,  80  N.  C.  205,  208;    Jones  v.  White,  11  Humph. 
(Teun.)  268;  Pidcock  v.  Potter,  68  Pa.  St.  342,  344;  Lush  v.  McDaniel, 

13  Ired.  (N.  C.)  485;  Washington  v.  Cole,  6  Ala.  212;  Linton  v.  Hurley, 

14  Gray  (Mass.),  191;  Cooper  v.  State,  23  Tex.  336,  340;  State  v.  Ten-ill, 
12  Rich.  (S.  C.)  321. 

2  Lush  v.  McDaniel,  13  Ired.  (N.  C.)  485;  Bennett  v.  Fail,  26  Ala.  605; 
Edington  v.  ./Etna  Life  Ins.  Co.,  77  N.  Y.  564,  568;   Tatum  v.  Mohr,  21 
Ark.  354 ;  Eckles  v.  Bates,  26  Ala.  655. 

3  Linton  v.  Hurley,  14  Gray  (Mass.),  191;  Willey  v.  Portsmouth,  35  N. 
H.  303,  308. 

*  Filer  v.  N.  Y.  Central  R.  R.  Co..  49  N.  Y.  42. 

5  Pidcock  v.  Potter,  68  Penn.  St.  344,  342 ;  Flynt  v.  Bodenhamer,  SO  N. 
C.  205,  208;  Filer  v.  N.  Y.  Central  R.  Co.,  49  N.  Y.  42;   Anthony  v. 
Smith,  4  Bos.  (N.  Y.)  503. 

6  Matteson  v.  N.  Y.  etc.  R.  R.  Co.,  62  Barb.  (N.  Y.)  364;  Jones  v. 
Tucker,  41  N.  H.  546;  Cooper  v.  State,  23  Tex.  336,  340;  Napier  v.  Fer- 
guson, 2  P.  &  B.  (New  Brans.)  415. 

7  Welch  v.  Brooks,  10  Rich.  (S.  C.)  124;  State  v.  Ten-ill,  12  Rich.  (S.  C.) 
3-21 ;  United  States  v.  McGlue,  1  Curtis  C.  C.  1,  9;  Napier  v.  Ferguson,  2 
P.  &  B.  (Xew  Brims.)  415;  Pitts  v.  State,  43  Miss.  472;  People  v.  Robin- 
son, 2  ParKer  Cr.  Cas.  (N.  Y.)  236;  Lake  v.  People,  1  Parker  Cr.  Cas. 
(X.  Y.)  495. 

8  Jones  v.  White,  11  Humph.  (Tenn.)  268,  Washington  v.  Cole,  6  Ala. 
212. 

9  Moore  v.  State,  17  Ohio  St.  521.  526. 

10  Morrissey  v.  Inghain,  111  Mass.  63. 

11  Sanderson  v.  Nashua,  44  N.  H.  492. 


80  EXPERT  TESTIMONY. 

§  52.  Wlio  are  Competent  to  express  Opinions  in  such 
Cases. —  A  physician  may  testify  that  a  certain  disease  pre- 
vailed in  a  certain  neighborhood  at  a  certain  time.1  But  it  has 
been  held  that  one  not  an  expert  cannot  testify  whether  there 
was  any  case  of  a  particular  disease  in  the  neighborhood  in 
question.2  And  the  general  rule  seems  to  be  that  one  who 
is  not  skilled  in  the  science  or  practice  of-  medicine,  is  not 
competent  to  express  an  opinion  that  a  person  is  afflicted 
with  a  particular  disease.3  But  any  person  of  ordinary  un- 
derstanding is  competent  to  form  an  opinion,  whether  one 
whom  he  has  had  an  opportunity  of  observing,  and  with 
whom  he  has  been  acquainted,  appeared  to  be  sick  or  well.4 
It  has  been  held,  too,  that  a  person  who  is  not  a  physician 
may  testify  whether  it  was  necessary  for  a  party  to  receive 
medical  assistance,  and  the  length  of  time  such  assistance 
was  necessary.  "  But,  in  a  question  of  this  kind,  any  per- 
son of  intelligence  is  capable  of  judging  of  the  necessity  of 
medical  advice  and  services.  It  is  universally  acted  upon 
by  all  classes  of  mankind,  and  we  are  not  disposed  to  lay 
down  a  rule  that  none  but  a  physician  is  competent  to  prove 
that  a  person  is  sick,  or  so  sick  as  to  require  medical  ad- 
vice." 5  A  non-professional  witness  may  also  testify  that  a 
person  was  decidedly  worse  at  one  time  than  he  was  at 
another,  and  could  not  do  so  much  work  as  before  —  his 
testimony  being  based  on  facts  within  his  observation.6 

1  Lush  v.  McDaniel,  13  Ired.  485. 

2  Evans  v.  People,  12  Mich.  27. 

3  Lush  Y.  McDaniel,  13  Ired.  (X,  C.)  485;  Thompson  v.  Bertrand,  23 
Ark.  730;  Chicago,  etc.  R.  R.  Co.  v.  George,  19  111.  510,  516;   Shawnee- 
town  v.  Mason,  82  111.  337,  339. 

4  Bennett  v.  Fail,  26  Ala.  605;  Barker  v.  Coleman,  35  Ala.  221 ;  Stone 
v.  Watson,  37  Ala.  279;  Higbie  v.  Guardian  Mutual  Life  Ins.  Co.,  53  X. 
Y.  603;  s.  c.,  66  Barb.  462;    Shawneetown  v.  Mason,  supra.  Brown  Y. 
Lester,  Ga.  Decis.  Part  I,  77;  See  Thompson  T.  Bertrand,  23  Ark.  730. 

fl  Chicago,  Burlington  &  Quincy  R.  Co.  v.  George,  19  111.  510. 

6  Parker  v.  Boston,  etc.  Steamboat  Co.  109  Mass.  449.  This  case  dis- 
tinguishes Ashland  v.  Marlborough,  99  Mass.  48  (which  held  that  one  not 
an  expert  could  not  testify  that  another  "  did  not  appear  like  a  well 
man  "),  upon  the  ground  that  the  witness  in  the  latter  case  had  not  tes- 
tified to  any  appearances  which  indicated  disease,  such  as  weakness  or 
inability  to  labor. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  81 

But  such  a  witness  cannot  testify  that  he  thought  a  person 
was  going  to  die.1  In  an  action  on  a  warranty  of  a  slave,  a 
person  who  was  not  an  expert  has  been  permitted  to  testify  as 
to  his  opinion  of  the  soundness  of  the  slave,  stating  the  facts 
upon  which  his  opinion  was  founded.2  So  a  wife  has  been  per- 
mitted to  testify  that  her  husband  had  a  rupture  ;  the  testi- 
mony being  received  upon  the  theory  that  it  was  not  a  fact 
resting  in  opinion,  and  its  determination  did  not  involve  any 
question  of  science  or  skill.3  But  where  the  question  was 
whether  a  woman  had  been  pregnant,  the  opinions  of  un- 
professional witnesses  were  held  to  be  inadmissible.4  In 
Alabama  it  is  laid  down  that  any  person  may  speak  of  the 
existence  of  disease  in  another,  when  the  disease  is  percep- 
tible by  the  senses.5  In  a  case  in  Michigan  it  is  said,  that 
"  no  witness,  medical  or  otherwise,  can  be  allowed  to 
give  testimony  from  his  observation  concerning  the  nature 
of  a  person's  illness  or  its  causes,  without  proof  both  of  a 
sufficient  examination,  and  such  knowledge  or  experience 
as  will  qualify  him  to  offer  an  opinion."  6 

§  53.  Nature  and  Effect  of  Wounds. — The  opinions  of 
physicians  and  surgeons  are  admissible  as  to  what  would  be 
the  natural  and  probable  results  of  wounds,7  and  whether 
they  were  sufficient  to  cause  death.8  In  a  recent  case,  where 
it  was  objected  that  the  physician  who  made  the  post-mortem 
examination  of  the  deceased,  could  not  express  an  opinion 
that  death  resulted  from  concussion  of  the  brain,  unless  he 
had  opened  the  head  and  examined  the  brain,  the  court 

1  Blackmail  v.  Johnson,  35  Ala.  252. 

*  Norton  v.  Moore,  40  Tenn.  483. 

3  Duntz  v.  Van  Beuron,  12  N.  T.  Sup.  Ct.  6-48. 
<  Boies  v.  McAllister,  12  Me.  310. 

•  Milton  v.  Rowland,  11  Ala.  732;  Fountain  v.  Brown,  38  Ala.  72 ;  Wil- 
keson  v.  Mosely,  30  Ala.  562. 

8  People  v.  Olmstead,  30  Mich.  434;  s.  c.,  1  Hawley's  Cr.  R.  301. 

7  Curry  v.  State,  5  Neb.  412 ;  State  v.  Porter,  34  Iowa,  131 ;   Page  v. 
State,  61  Ala.  16;   Kline  v.  The  K.  C.,  St.  J.  etc.  R.  Co.,  50  Iowa,  656, 
660;  State  v.  Stoyell,  70  Me.  360. 

8  State  v.  Powell.  7  N.  J.  Law,  295;  Livingston  r.  Commonwealth,  14 
Gratt.  (Va.)  592;  State  v.  Morphy,  33  Iowa,  272;  Ebos  v.  State,  34  Ark. 
520;  State  v.  Jones,  68  X.  C.  443;  State  v.  Matthews,  66  N.  C.  113. 

(6) 


82  EXPERT  TESTIMONY. 

said  :  "  We  are  aware  of  no  law  that  required  him  to  open 
the  skull  and  examine  the  brain,  before  he  could  be  per- 
mitted to  express  such  an  opinion  to  the  jury.  Of  course, 
the  opinion  of  a  medical  witness  in  such  case  would  have 
more  or  less  weight  with  the  jury,  according  to  the  extent 
of  the  examination,  the  professional  rank  and  character  of 
the  witness."1  They  are  allowed  to  give  their  opinion  as  to 
whether  the  effects  of  the  wound  are  permanent  in  their 
nature,3  and  as  to  the  probable  effect  of  the  wound  on  the 
general  health  of  the  injured  person,  whether  in  consequence 
of  it  he  is  liable  to  any  particular  disease.3  The  opinion  of 
an  expert  has  been  received  as  to  which  of  two  wounds, 
either  by  itself  necessarily  fatal,  actually  caused  the  death 
of  the  deceased.4  The  opinion  of  such  a  witness  has  been 
received,  too,  as  to  whether  the  fracture  of  a  skull  was 
recently  made,  the  body  having  been  found  six  months 
after  the  person's  disappearance.5  And  it  is  not  necessary 
that  the  expert  should  have  actually  seen  the  wound,  pro- 
vided he  has  heard  it  described.6  He  may  express  an  opin- 
ion that  a  wound  was  inflicted  after  death.7  It  has  been 
held  that  a  non-professional  witness,  who  had  seen  the 
wounded  person,  could  describe  the  wound  as  inflamed  and 
tender  to  the  touch,  and  could  testify  that  such  person  com- 
plained of  stiffness  in  the  fingers,  and  in  the  neck  and  in  the 
jaws,  and  that  since  the  injury  the  witness  had  observed 
that  the  wounded  man  could  not  use  his  arm  as  he  could 
before.8  And  one  need  not  be  an  expert  to  testify  as  to 
the  condition  of  a  person's  health  and  body  before  and 
after  an  injury.9  It  has  been  held  that  a  physician  or 

1  Ebos  v.  State,  supra. 

8  Wilt  v.  Vickers,  8  Watts,  (Perm.)  227;  Eowell  v.  City  of  Lowell,  11 
Gray  (Mass.),  420;  Noblesville  etc.  R.  R.  Co.  v.  Gause,  76  Ind.  142; 
Maeer  v.  Third  Avenue  R.  R.  Co.,  47  N.  Y.  Superior  Ct.  461. 

8  Montgomery  v.  Town  of  Scott,  34  Wis.  338. 

4  Eggler  v.  People,  56  N.  Y.  642. 

s  Lindsay  v.  People,  63  N.  Y.  143. 

6  State  v.  Powell,  7  N.  J.  Law,  295;  Page  v.  State,  61  Ala.  16. 

7  State  r.  Harris,  63  N.  C.  1 ;  Shelton  v.  State,  34  Texas,  666. 

8  Craig  v.  Gerrish,  to  appear  in  58  N.  H. ;  s.  c.  25  Alb.  L.  J.  498. 

9  Townsdin  v.  Xutt,  19  Kans.  282. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  83 

or  surgeon  may  testify  as  to  the  amount  of  force  required 
to  break  a  person's  skull,  his  opinion  being  based  on  his 
familiarity  with  anatomy,  and  his  knowledge  of  the  struc- 
ture, thickness  and  strength  of  the  human  skull  generally.1 
It  has  been  held,  too,  that  one  having  a  knowledge  of  gun 
shot  wounds,  may  be  asked  as  to  the  posture  and  position 
of  the  deceased  at  the  time  he  was  shot,2  and  whether,  if  he 
was  in  a  stooping  position  at  the  time  he  was  struck,  the 
ball  would  have  taken  the  course  which  it  did.3  But  it  has 
been  held  that  a  physician  or  surgeon  is  not  an  expert  as  to 
the  manner  of  giving  blows  upon  the  head,  and  is,  there- 
fore, incompetent  to  express  an  opinion  as  to  the  position 
of  the  body  when  struck.  "The  form,  nature,  extent, 
depth,  length,  width  and  direction  of  the  wound  being 
given,  and  its  precise  location  on  the  head,  with  a  general 
statement  of  the  amount  of  force  requisite,  and  the  probable 
shape  of  the  instrument,  the  jury  can  judge  as  well  as  any 
one,  in  what  position  the  head  or  the  body  probably  was 
when  the  blow  was  given."4  For  the  purpose  of  explaining 
and  rendering  his  evidence  intelligible  to  the  jury,  an  expert 
may  be  allowed,  in  describing  wounds,  to  make  use  of 
plates  and  diagrams,  although  not  cluimed  to  be  strictly 
accurate,  and  not  intended  to  be  used  as  evidence.5  In  the 
trial  of  a  person  indicted  for  murder,  counsel  for  the  pris- 
oner insisted  that  experts  should  have  been  summoned  to 
show  that  the  wound  inflicted  was  dangerous,  or  mortal,  or 
caused  death.  The  court  held  that  no  such  testimony  was 
necessary,  as  it  appeared  that  the  deceased  was  a  strong 
and  apparently  healthy  man,  who  took  to  his  bed  immedi- 
ately after  the  wound,  suffered  intensely  for  two  days,  and 
then  died.6  And  on  the  trial  of  an  indictment  for  murder, 
where  a  witness  testified  that  he  had  made  certain  experi- 

1  Kennedy  v.  People,  39  N.  Y.  245. 

2  State  v.  Jones,  63  N.  G.  443. 

4  Commonwealth  v.  Lenox,  3  Brewster,  249. 
<  Kennedy  v.  People,  39  X.  Y.  245,  256. 

5  State  v.  Knight,  43  Me.  1, 130. 

6  State  "Murphy,  9  Nevada,  394. 


84  ^EXPERT  TESTIMONY. 

ments  upon  a  dynamometer,  an  instrument  for  measur- 
ing the  force  of  blows  and  the  weight  of  falling  bodies, 
by  striking  it  with  a  bat  of  substantially  the  same  form  and 
weight  as  that  with  which  the  government  contended  the 
murder  was  committed,  it  was  held  that  the  court  might,  in 
its  discretion,  properly  reject  such  testimony,  unless  the 
experiments  were  shown  to  have  been  made  under  condi- 
tions the  same  as  those  existing  in  the  case  on  trial.1 

§  54.  Character  of  Instrument  with  which  Wound  was 
Produced. — A  practicing  physician  or  surgeon  may  be  asked 
his  opinion  as  to  the  kind  of  instrument  used  in  inflicting 
wounds, 2  as  whether  a  wound  was  produced  with  a  blunt 
or  a  sharp  instrument ; 8  and  whether  the  fractures  on  the 
sknll  of  the  deceased,  produced  in  court,  were  caused  by 
blows  from  a  gun  shown  to  the  witness  ;  *.  also  whether  the 
skin  of  a  person's  throat  had  been  cut  by  a  sharp  instru- 
ment, or  torn.5  It  has  been  held  proper  to  show  that  the 
corner  of  a  hatchet's  edge,  if  held  by  a  person  standing  in 
front  of  the  deceased  while  he  was  on  his  feet,  exactly  fitted 
the  hole  in  the  skull.6  A  surgical  expert  who  had  examined 
the  wound,  has  been  allowed  to  testify,  whether,  from  its 
form  and  appearance,  it  could  have  been  produced  by  a 
razor ; 7  and  whether  certain  injuries  to  the  head  could  have 
been  produced  at  the  same  time,  and  by  one  blow  ; 8  also 
whether  the  wounds  could  have  been  inflicted  accidentally  :9 
and  whether  the  wound  could  have  been  produced  by  coming 
in  contact  with  a  body  of  hard  material,  where  there  were 
no  sharp  angles  or  points.10  A  physician  and  surgeon  of 
experience  with  gunshot  wounds,  may  testify  whether  a 

l!Corcmonwealth  v.  Piper,  120  Mass.  185. 

a  Davis  v.  State,  38  Md.  15,  35;  State  v.  Porter,  34  Iowa,  131. 

3  State  v.  Morphy,  33  Iowa,  272. 

4  Gardner  y.  People,  6  Parker  Cr.  Cas.  155. 
8  State  v.  Clark,  12  Ired.  Law  (N.  C.)  152. 

8  Colt  v.  People,  1  Parker  Cr.  Cas.  611,  620. 

*•  State  v.  Knight,  43  Me.  1,  130. 

8  Commonwealth  v.  Piper,  120  Mass.  185. 

8  Davis  v.  State,  38  Md.  15,  37. 

u  State  v.  Pike,  65  Me.  Ill,  114. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  85 

wound  was  inflicted  by  a  shot  from  a  gun,1  and  he  may  ex- 
plain to  the  jury  why  the  wound  looks  smaller  than  the  ball 
which  caused  it.2 

§  55.  AVho  are  Competent  to  Express  Opinions  as  te 
the  Instrument  Used. — It  seems  that  one  who  is  not  skilled 
in  the  science  of  medicine  or  surgery,  is  not  competent  to 
express  an  opinion  as  to  whether  a  wound  was  made  by  a 
gunshot,  or  by  a  knife  or  other  sharp  instrument,  no  matter 
what  may  have  been  his  experience  and  observation.8  But 
a  physician  or  surgeon,  although  he  has  never  seen  a  wound 
made  by  a  knife  or  dirk,  is  competent  to  express  an  opinion, 
if  he  states  that  from  his  general  acquaintance  with  the 
human  body,  and  his  knowledge  of  the  practice  and  princi- 
ples of  surgery,  he  believes  he  can  successfully  distinguish 
and  form  a  correct  opinion  in  the  case.4 

§  5(>.  Opinions  of  Medical  Experts  as  to  Mental  Condi- 
tion.—  The  general  rule  undoubtedly  is  that  the  opinions  of 
medical  experts  are  admissible,  where  the  question  involved 
relates  to  soundness  or  unsoundness  of  mind.  If  a  physi- 
cian visits  a  person,  and  from  actual  examination  or  obser- 
vation becomes  acquainted  with  his  mental  condition,  there 
would  seem  to  be  no  good  reason  why  he  should  not  state 
to  the  jury  his  opinion  as  to  such  person's  sanity  or  insanity, 
mental  soundness  or  unsoundness,  at  the  time  he  thus  ob- 
served him.  As  Mr.  Chief  Justice  DILLON  expressed  it,  in 
a  case  in  Iowa :  "  There  is  no  more  reason  why  he  may  not 
do  this,  than  why  he  might  not  testify  that  he  saw  a  certain 
person  at  a  certain  time,  and  that  he  was  then  laboring  un- 
der an  epileptic  fit,  or  under  an  attack  of  typhus  fever,  or 
had  been  stricken  down  and  rendered  unconscious  by  aii 
apoplectic  stroke."  5 

It  is  not  to  be  supposed,  however,  that  it  ia  at  all  essen- 
tial that  a  physician  should  have  seen  the  person,  and  made 

1  Rash  v.  State,  61  Ala.  90;  Colt  v.  People,  1  Parker  Or.  Cas.  611,  620. 
1  Schlencker  v.  State,  9  Neb.  250. 

»  Caleb  v.  State,  39  Miss.  721 ;  Rash  v.  State,  Gl  Ala,  90. 
4  Mendum  v.  Commonwealth,  6  Rand.  (Va.)  704.    See  too,  State  v, 
Clark,  12  Ired.  (X.  C.)  Law,  152. 
s  State  v.  Felter,  25  Iowa,  G7. 75. 


86  EXPERT  TESTIMONY. 

a  personal  examination  of  the  case,  in  order  to  make  him 
competent  to  express  an  opinion  as  to  his  mental  condition. 
On  the  contrary,  the  rule  is  that  his  opinion  is  admissible, 
whether  it  is  founded  on  facts  within  his  personal  observa- 
tion, or  upon  a  hypothetical  case  based  on  the  testimony  of 
others.1  But  where  he  has  made  a  personal  examination  it 
is  necessary  for  him  to  describe  the  symptoms  observed,  and 
state  the  circumstances  from  which  he  has  drawn  his  con- 
clusions.2 

§  57.  The  Rule  in  Massachusetts. —  In  Massachusetts 
greater  strictness  prevails  as  to  the  competency  of  witnesses 
to  express  opinions  upon  the  subject  of  mental  disease. 
The  rule  is  in  that  State  to  receive  the  opinions  of  profes- 
sional men  who  are  conversant  with  insanity,  who  have 
made  a  specialty  of  mental  diseases,  and  had  experience 
with  the  insane.  Such  witnesses  are  permitted  to  express 
their  opinions,  and  it  is  not  necessary  that  they  should  have 
made  any  personal  examination  of  the  individual  concerned.3 
But  it  seems  that  a  physician  who  has  not  made  a  specialty 
of  mental  diseases,  is  not  competent  to  express  an  opinion, 
unless  he  was  the  person's  attending  physician,  in  which 
case  his  opinion  is  received,  as  "It  is  his  duty  to  make  him- 
self acquainted  with  the  peculiarities,  bodily  and  mental,  of 
a  person  who  is  the  subject  of  his  care  and  advice."  4 

§  58.  Roman  Catholic  Priest  as  an  Expert  as  to 
Sanity. —  A  very  interesting  case  was  decided  in  the  Su- 
preme Court  of  California  in  1880,  which  involved  the  ques- 
tion whether  a  Roman  Catholic  priest  could  express  an 
opinion  as  to  the  sanity  of  a  testator,  such  opinion  being 

1  Potts  v.  House,  6  Ga.  324;  Boavdinan  v.  Woodman,  47  N.  H.  120,  135; 
State  v.  Windsor,  5  Harr.  (Del.)  512;  Pigg  v.  State,  43  Tex.  110;  Guet- 
ing  v.  State,  66  Ind.  94;  Cooper  v.  State,  23  Tex.  336,  340;  Lessee  of 
Hoge  v.  Fisher,  1  Peters  C.  C.  163, 164. 

*  Puryear  v.  Reese,  46  Tenn.  21 ;  Gibson  v.  Gibson,  9  Yerg.  (Tenn.) 
329;  White  v.  Bailey,  10  Mich.  155;  Hathorn  v.  King,  8  Mass.  371 ;  Dick- 
inson v.  Barber,  9  Mass.  225. 

8  Commonwealth  v.  Rogers,  7  Metcalf .  500. 

4  Hastings  v.  Rider,  99  Mass.  625.  But  see  Commonwealth  v.  Rich,  14 
Gray,  335. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  87 

given  by  him  in  the  character  of  an  expert.  The  court, 
overruling  the  decision  of  the  trial  court,  held  that  he  was 
competent  to  testify  as  an  expert.  The  evidence  showed 
that  he  had  been  regularly  educated  for  the  priesthood  in  a 
college  in  Spain,  that  he  had  officiated  as  a  priest  for 
ten  years,  that  it  was  part  of  his  preparatory  educa- 
tion to  become  competent  to  pass  upon  the  mental  condition 
of  communicants  in  his  church,  and  that  for  that  purpose 
physiology  and  psychology  were  branches  of  his  study.  It 
appeared,  said  the  court,  "  That  previous  to  officiating  as  a 
priest  it  was  requisite  that  he  should  be  skilled  in  determin- 
ing the  mental  condition  of  those  who  sought  the  sacra- 
ments. That  in  every  case  of  the  administration  of  the 
rites  of  his  church  to  invalids  or  dying  persons,  it  was 
necessary  for  the  priest  to  make  an  examination  of  the  men- 
tal condition  of  the  recipient,  to  ascertain  if  his  mind  was 
in  a  proper  state  to  reason  or  act  of  its  own  volition. 
That  the  sacrament  could  only  be  administered  after,  such  a 
preliminary  examination,  and  that  therefore  as  a  priest  he 
was  daily  required  to  exercise  and  pass  his  judgment  on  the 
mental  condition  of  persons."  l 

§  59,.  Mode  of  Examination  as  to  Sanity. —  We  have 
elsewhere  considered  the  mode  of  examination  to  be  pur- 
sued in  the  case  of  expert  witnesses.2  The  principles  there 
stated  are,  of  course,  as  applicable  to  the  examination  of 
experts  in  mental  diseases,  as  to  the  examination  of  any 
other  class  of  experts,  and  it  is  not  necessary  to  make  any 
reference  to  that  subject  in  this  connection,  farther  than  to 
call  attention  to  the  mode  of  inquiry,  which  has  been  sug- 
gested in  New  York  as  proper  to  be  pursued  in  the  examina- 
tion of  medical  witnesses  testifying  as  to  sanity.  First 
inquire  of  the  witness,  said  Judge  HARRIS,  as  to  the  partic- 
ular symptoms  of  insanity,  asking  whether  all  or  any,  and 
which  of  the  circumstances  spoken  of  by  the  witnesses  upon 
the  trial  are  to  be  regarded  as  such  symptoms.  Then  in- 


1  Estate  of  Tooraes,  54  Cal.  510. 
*  See  Chapter  III. 


88  EXPERT  TESTIMONY. 

quire  of  him  whether  any  and  what  combination  of  these 
circumstances  would,  in  his  opinion,  amount  to  proof  of 
insanity.1 

§  60.  Evidence  Bearing  on  Question  of  Insanity. — The 
opinions  of  experts  are  received  as  to  the  causes  tending  to 
the  development  of  mental  unsoundness.  For  instance,  the 
opinions  of  experts  have  been  received  showing  that  paral- 
ysis in  old  persons  has  a  tendency  to  impair  the  mind.2 
As  bearing  upon  the  question  of  a  person's  insanity,  or 
tendency  to  insanity,  evidence  is  received  that  such  person's 
father  or  mother  were  of  unsound  mind,8  or  that  his  uncle,* 
or  brother,5  or  other  relations  suffered  from  mental  disease.6 
And  reputation  in  the  family  of  the  insanity  of  some  of 
the  members  of  the  family,  is  admissible  on  the  same 
principle  which  admits  such  reputation  as  to  deaths,  births, 
genealogies,  etc.7  But  it  is  highly  important  that  evidence 
should  not  be  received  as  suggesting  insanity,  unless 
it  has  some  legitimate  tendency  to  prove  it.  "  We  are 
pursuaded  that  much  wrong  has  unwittingly  been  done 
in  many  cases,  by  allowing  misfortunes,  family  calamities 
and  personal  peculiarities,  to  go  to  the  jury  as  having  some 
necessary  tendency  to  unsettle  the  mind,  and  therefore, 
some  bearing  on  the  issue  of  mental  soundness."8  It  is 
proper  to  inquire  as  to  the  person's  state  of  mind,  both 
before  and  after  the  time  concerning  which  the  the  par- 
ticular inquiry  is  directed.9  "  Upon  the  question  of  sanity 

1  See  People  v.  McCann,  3  Parker  O.  Cos.  272,  298. 
» Lord  v.  Beard,  79  N.  C.  5. 

3  Coughlin  v.  Poulson,  2  McArthur,  308 ;   Baxter  v.  Abbott,  7  Gray, 
(Mass.)  71. 

4  Baxter  v.  Abbott.,  supra. 

8  Eraser  v.  Jennison,  42  Mich.  206,  228. 

e  People  v.  Montgomery,  13  Abb.  Pr.  (N.  S.)  207,  250;  State  v.  Wind- 
sor, 5  Harr.  (Del.)  512. 

J  State  v.  Windsor,  supra. 

8  Fraser  v.  Jennison,  42  Mich.  206,  227. 

»  McAllister  v.  State,  17  Ala.  434,  436;  McLean  v.  State,  16  Ala.  672; 
Grant  v.  Thompson,  4  Conn.  203,  208;  Kinne  v.  Kinne,  9  Conn.  102; 
Norwood  v.  Morrow,  4  Dev.  &  Batt.  442,  451;  State  v.  Felter,  25  Iowa, 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  89 

at  the  time  of  committing  an  offence,"  says  the  Supreme 
Court  of  Massachusetts,  "  the  acts,  conduct  and  habits  of 
the  prisoner  at  a  subsequent  time,  may  be  competent  as  evi- 
dence in  his  favor.  But  they  are  not  admissible,  as  of 
course.  When  admissible  at  all,  it  is  upon  the  ground, 
either  that  they  are  so  connected  with,  or  correspond  to  evi- 
dence of  disordered  or  weakened  mental  condition  preceding 
the  time  of  the  offence,  as  to  strengthen  the  inference  of 
continuance,  and  carry  it  by  the  time  to  which  the  inquiry 
relates,  and  thus  establish  its  existence  at  that  time  ;  or  else 
that  they  are  of  such  a  character  as  of  themselves  to  indi- 
cate unsoundness  to  such  a  degree,  or  of  so  permanent  a 
nature,  as  to  have  required  a  longer  period  than  the  interval 
for  its  production  or  development."1  It  is  admissible  to 
give  in  evidence  particular  acts  of  madness.2  But  it  is  not 
competent  to  introduce  the  doubt  of  an  expert  as  to  a 
person's  sanity.3  And  a  record  of  the  condition  and  treat- 
ment of  a  patient  in  a  hospital,  produced  at  a  trial  forty 
years  after  its  date  by  the  superintendent  of  the  hospital,  of 
which  he  is  the  official  custodian,  and  which  purports  to 
have  been  contemporaneously  made  by  the  attending  physi- 
cians, of  all  cases  there  treated,  and  which  it  was  their  duty 
to  make,  has  been  held  in  Massachusetts  to  be  admissible  in 
evidence,  as  a  foundation  for  the  opinion  of  an  expert  as  to 
whether  it  indicated  mental  disease  of  the  patient,  and  that 
without  identifying  the  person  who  made  it.4  In  a  case 
where  the  sanity  of  a  testatrix  was  questioned,  and  positive 
evidence  of  her  insanity  had  been  given,  upon  its  being 
proved  that  she  had  a  paralytic  attack  shortly  before  the 
execution  of  the  will,  it  was  held  improper  to  prove  by  an 
expert  that,  in  nine  cases  out  of  ten,  paralysis  did  not  pro- 


G7,  75;  Lake  v.  People,  1  Parker  Or.  Cas.  495;  Freeman  v.  People,  4 
Denio,  9. 

1  Commonwealth  v.  Pomeroy,  117  Mass.  148.  See  too,  White  v.  Graves, 
107  Mass.  325. 

*  Clark  v.  Periam,  2  Atk.  337,  340. 

8  Sanchez  v.  People,  22  K.  Y.  147. 

4  Townsend  v.  Pepperell,  99  Mass.  40. 


90  EXPERT  TESTIMONY. 

duce  any  effect  upon  the  mind.1  If  it  could  have  been  shown 
that  it  in  no  case  affected  the  mind,  the  ruling  would,  of 
course,  have  been  different. 

§  61.  Opinions  of  Xon-Professional  Witnesses  as  to 
Mental  Condition. — There  seems  to  have  been  no  dispute 
as  to  the  right  of  the  subscribing  witnesses  to  a  will,  to 
testify  concerning  the  actual  mental  condition  of  the  tes- 
tator, but  their  opinions  have  been  received  as  fully  as 
those  of  medical  experts.  The  fact  that  they  were  present 
at  the  time  the  will  was  signed,  makes  them  competent  to 
speak  upon  the  subject,  whether  they  "happen  to  be  th,e 
attending  physicians,  nurses,  children,  or  chance  strangers."3 
And  it  does  not  seem  to  be  necessary  that  they  should  state 
the  facts  upon  which  their  opinions  are  predicated.8  But  a 
marked  difference  of  opinion  has  existed  as  to  the  right  of 
persons,  who  are  neither  the  subscribing  witnesses  to  the 
will,  nor  experts  in  mental  diseases,  to  express  any  opinion 
whatever  as  to  a  person's  sanity  or  insanity,  soundness  or 
unsoundness  of  mind.  It  has  been  held  in  a  number  of 
cases,  that  the  opinions  of  such  witnesses  cannot  be  re- 
ceived.4 Such  opinions  were  excluded  upon  the  theory,  that 
special  knowledge  and  skill  was  required  to  judge  intelli- 
gently of  the  mental  condition  of  another,  and  that  if  the 

1  Lands  v.  Lands,  1  Grant  (Penn.),  248. 

2  Hardy  v.  Merrill,  56  N.  H.  227,  243;  Poole  v.  Richardson,  3  Mass. 
330;  Chase  v.  Lincoln,  31  Mass.  237;  Needham  v.  Ide,  5  Pick.  510;  Potts 
v.  House,  6  Ga.  324;  Van  Huss  v.  Rainbolt,  42  Tenu.  139;    De  Witt  v. 
Barley,  9  X.  Y.  371 ;  Williams  v.  Lee,  47  Md.  321 ;  Boardman  v.  Wood- 
man, 47  N.  H.  120,  134;   Grant  v.  Thompson,  4  Conn.  203;  Wogan  v. 
Small,  11  S.  &  R.  (Penn.)  141 ;  Rambler  v.  Tyron,  7  S.  &  R.  (Peun.)  90, 
92;  Cilley  v.  Cilley,  34  Me.  162;  Robinson  v.  Adams,  62  Me.  369;  Logan 
v.  McGinnis,  12  Penn.  St.  27;  Titlow  v.  Titlow,  54  Penn.  St.  216;  Gibson 
v.  Gibson,  9  Yerg.  (Teun.)  329. 

3  Williams  v.  Lee,  47  Md.  321 ;  Van  Huss  v.  Rainbolt,  42  Tenn.  139. 

4  Wyman  v.  Gould,  47  Me.  159;  Hickman  v.  State,  3S  Texas,  191;  State 
v.  Archer,  54  N.  H.  465;  Boardman  v.  Woodman,  47  X.  H.  120;  Com- 
monwealth v.  Fairbanks,  2  Allen  (Mass.),  511;  Townsend  v.  Pepperell, 
99  Mass.  40 ;  Hastings  v.  Rider,  99  Mass.  624,  625 ;   Commonwealth  v. 
Wilson,  1  Gray,  337;  State  v.  Pike,  49  X.  H.  399;  Van  Horn  v.  Keenan, 
28  111.  445,  419;    De  Witt  v.  Barley,  9  X.  Y.  371;  State  v.  Geddis,  42 
Iowa,  268. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  91 

witnesses  gave  a  detailed  account  of  the  acts  and  conduct  of 
the  person  whose  mental  capacity  was  in  question,  the  jury 
was  as  competent  to  form  an  opinion  thereon,  as  the  wit- 
nesses themselves.  That  the  opinions  of  professional 
witnesses  should  be  received,  as  they  could  judge  with  some 
degree  of  accuracy,  from  pathological  symptoms,  but  as 
non-professional  witnesses  could  only  form  their  opinions 
from  the  actual  demonstrations  of  the  person,  those  demon- 
strations should  be  stated  to  the  jury,  and  that  body  left  to 
form  their  own  opinion  as  to  the  cause  and  character  of  the 
appearances  described.  The  fact  has  come,  however,  to  be 
generally  recognized,  that  it  is  impossible  so  to  describe  the 
appearance  and  demonstrations  of  a  person,  as  to  convey 
any  accurate  idea  of  their  exact  character,  and  to  leave 
upon  the  mind  of  jurors  the  legitimate  impressions  which 
such  demonstrations  and  appearances  naturally  leave  upon 
the  mind  of  the  actual  observer.  The  result  has  been  that 
many  of  the  earlier  cases  have  been  overruled,  and  the  prin- 
ciple has  come  to  be  generally  recognized  that  non-profes- 
sional witnesses  may  give  their  opinions  as  to  sanity,  as  a 
result  of  their  personal  observation  of  the  person  whose 
mental  condition  is  in  question,  after  first  stating  the  facts 
which  they  observed.1 

1  Thomas  v.  State,  40  Texas,  05;  Whitcomb  v.  State,  41  Texas,  125; 
McClackey  v.  State,  5  Tex.  Ct.  of  App.  320;  Webb  v.  State,  5  Tex.  Ct. 
of  App.  596;  Hardy  V.  Merrill,  56  N.  H.  227;  Dennis  v.  Weeks,  51  Ga. 
24;  Choice  v.  State,  31  Ga.  424,  466;  Berry  v.  State,  10  Ga.  511;  People 
v.  Sanford,  43  Cal.  29;  Roe  v.  Taylor,  45111.486;  Beller  v.  Jones,  22 
Ark.  92;  Clark  v.  State,  12  Ohio,  483;  State  v.  Hayden,  51  Vt.  296; 
Crane  v.  Crane,  33  Vt.  15;  Morse  v.  Crawford,  17  Vt.  499;  Florey's 
Ex'rs  v.  Florey.  24  Ala.  247 ;  Puryear  v.  Reese,  46  Tenn.  21 ;  Gibson  v. 
Gibson,  9  Yerg.  (Teun.)  329;  People  v.  Finley,  38  Mich.  482,  484;  Walker 
v.  Walker,  14  Ga.  242;  Fielder  v.  Collier,  13  Ga.  4D6;  Dieken  v.  Johnson, 
7  Ga.  484;  Foster  v.  Brooks,  6  Ga.  290;  Crowe  Adm'r  v.  Peters,  63  Mo. 
429;  Sutherland  v.  Hawkins,  56  Incl.  343;  Rush  v.  Megee,  36  Ind.  69; 
Hunt's  Heirs  v.  Hunt,  3  B.  Monr.  (Ky.)  577;  Rambler  v.  Tyron,  7  S.  & 
R.  90;  Wilkinson  v.  Pearson,  23  Penn.  St.  117;  MeDougald  v.  McLean, 
1  Winston  (N.  C.)  Law,  120;  Estate  of  Brooks,  54  Cal.  471;  Williams  v. 
Lee,  47  Md.  321 ;  Dove  v.  State,  50  Tenn.  348;  Waters  v.  Waters,  35  Md. 
531;  Pidcock  v.  Potter,  68  Penn.  St.  342;  State  v.  Newlin,  69  Ind.  108; 
State  v.  Klinger,  46  Mo.  224;  Clary  v.  Clary,  2  Ired.  (X.  C.)  78;  De  Witt 


92  EXPERT  TESTIMONY. 

§  62.  This  Subject  Continued. —  This  whole  subject  has 
been  elaborately  discussed  in  a  recent  case  in  New  Hamp- 
shire, in  which  Mr.  Chief  Justice  FOSTER  states  that;  "A 
tolerably  careful  investigation  authorizes  me  to  repeat  the 
language  of  Judge  DOE,  that  '  in  England  no  express  deci- 
sion of  the  point  (the  admissibility  of  such  evidence)  can 
be  found,  for  the  reason  that  such  evidence  has  always 
been  admitted  without  objection.  It  has  been  universally 
regarded  as  so  clearly  competent,  that  it  seems  no  English 
lawyer  has  ever  presented  to  any  court  any  objection,  ques- 
tion, or  doubt  in  regard  to  it.'  "  * 

It  must  be  conceded,  we  think,  that  the  interests  of 
justice  require  that  such  testimony  should  be  received. 
The  inquiry  does  not  seem  to  be  one  necessarily  involv- 
ing scientific  evidence,  as  being  one  beyond  the  domain 
of  common  sense.  And  it  is  quite  possible  for  non-profes- 
sional witnesses  to  observe  innumerable  acts,  motions  and 
expressions,  which  it  is  impossible  to  communicate  so  as  to 
convey  any  fair  conception  of  their  importance,  and  which 
are  nevertheless  sufficient  to  conclusively  satisfy  the  obser- 
ver as  to  a  person's  mental  condition.  While  such  opinions 
are  admissible,  yet  no  general  rule  can  be  laid  down  aa  to 
what  shall  be  deemed  a  sufficient  opportunity  of  observation 
in  the  witness,  other  than  it  has  enabled  him  to  form  a  belief 
or  judgment  thereon.2  And  in  a  recent  case  in  the  Court  of 
Appeals  of  Texas,  the  idea  is  repudiated  that  it  is  within 
the  province  of  the  court  to  determine,  upon  the  acquaint- 
ance and  the  sufficiency  of  the  means  of  information,  as  to 
the  facts  stated  upon  which  the  conclusion  of  the  witness  is 

v.  Barley,  17  N.  Y.  340 ;  Beaubien  v.  Cicotte,  13  Mich.  459;  Kelly's  Heirs 
v.  McGuire,  15  Ark.  555,  601;  Stewart  v.  Redditt,  3  Md.  67;  Dorsey  v. 
Warfield,  7  Md.  65;  Brooke  v.  Townshend,  7  Gill  (Md.),  24;  Burnham 
v.  Mitchell,  34  Wis.  Ill;  Kilgore  v.  Cross,  1  Fed.  Rep.  582;  People  v. 
Wreden  (Sup.  Ct.  of  Cal.),  12  Reporter,  682;  Pinney's  Will,  27  Minn. 
280. 

1  State  v  Pike,  49  N.  H.  408,  409 :  Hardy  v.  Merrill,  56  N.  H.  227,  240. 
See,  too.  Lord  Denman's  charge  In  Regina  v.  Oxford,  9  C.  &  P.  525; 
and  Carevv  v.  Johnston,  2  Sch.  &  Lef.  280,  285;    Regina  v.  Nerville, 
Crawf.  &  Dix  Ab.  Not.  Cas.  96. 

2  Choice  v.  State,  31  Ga.  424,  4G7. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  93 

based,  and  to  determine  upon  the  admissibility  of  the  evi- 
dence, and  to  admit  or  exclude  it,  according  as  the  facts 
should  appear,  as  developed  on  the  examination  of  the  wit- 
ness. It  was  said  that  "  whether  the  means  of  information, 
or  facts  proved,  or  the  conclusions  drawn  by  the  witness 
are  of  the  satisfactory  character  required  to  base  a  finding 
upon,  or  not,  is  for  the  consideration  of  the  jury,  under 
proper  instructions."  l  While  the  rule  that  non-professional 
witnesses  shall  not  be  permitted  to  give  an  opinion  upon  the 
question,  seems  to  bo  still  maintained  in  Massachusetts,  yet 
such  witnesses  have  been  permitted  to  testify  in  that  State, 
being  acquainted  with  the  person  in  question,  whether  they 
noticed  any  change  in  his  intelligence,  or  any  want  of  cohe- 
rence in  his  remarks.  Such  inquiries,  as  it  was  said,  did 
not  call  for  the  expression  of  an  opinion  upon  the  question 
whether  the  testator  was  of  sound  or  unsound  mind,  and 
were  therefore  admissible.2  So  it  has  been  held  in  the  same 
State  that  one,  who  had  been  for  many  years  the  guardian 
of  the  testator,  could  be  asked  whether  he  ever  observed 
any  fact  which  led  him  to  infer  that  there  was  any  derange- 
ment of  intellect.8  In  a  case  in  Ohio  the  Supreme  Court  of 
that  State  ruled  that  the  witness  should  be  asked  what 
opinion  he  entertained  at  the  time  of  trial,  and  not  as  to  the 
opinion  which  he  may  have  entertained  at  the  time  of  the 
acts  referred  to  by  him,  inasmuch  as  subsequent  reflection 
and  consideration  might  have  satisfied  him  that  the  opinion 
formed  at  the  time  of  observation  was  erroneous.4  And  in 
Vermont  the  court  held  that,  the  fact  that  the  witness  did 
not  form  his  opinion  at  the  time  he  saw  and  observed  the 
facts  testified  to  by  him,  did  not  render  his  opinion  on  that 
account  inadmissible.5  The  rule  in  New  York  has  been 
laid  down  by  the  courts  with  great  care  and  precision. 
Non-professional  witnesses  who  have  testified  to  facts  tend- 

1  McClackey  v.  State,  5  Tex.  Ct.  of  App.  331. 

2  Barker  v.  Comins,  110  Mass.  477. 

3  May  v.  Bradlee,  127  Mass.  414. 

4  Runyan  v.  Price,  15  Ohio  St.  14. 

3  Hathaway's  Admr.  v.  National  Life  Ins.  Co.,  48  Vt.  335. 


94  EXPERT  TESTIMONY. 

ing  to  show  menial  unsoundness,  are  not  permitted  in? 
the  courts  of  that  State  to  state  what  they  thought  of  the 
person's  condition  of  mind,  or  their  impressions  as  to  his 
state  of  mind.1  But  they  are  allowed  to  characterize  as  ra- 
tional or  irrational  the  acts  and  declarations  to  which  they 
have  testified,  and  to  state  the  impression  produced  upon 
their  minds  by  what  they  beheld  or  heard,  their  examina- 
tion being  limited  to  their  conclusions  from  the  specific 
facts  they  disclose,  and  so  confined  as  to  exclude  any  opinion 
on  the  general  question  of  soundness  or  unsoundness  of 
mind.2 

§  63.  Rape,  Abortion,  Pregnancy,  etc. —  On  the  trial  of 
an  indictment  for  the  rape  of  a  child,  the  opinion  of  a 
physician  that  there  had  been  actual  penetration,  is  held 
admissible.3  And  upon  such  trials  medical  experts  may  be 
examined  as  to  the  health  and  physical  condition  of  the 
prosecutrix  at  the  time  of  the  alleged  offence,  as  bearing 
upon  her  ability  to  resist  the  defendant.*  But  it  has  been 
held  incompetent  to  ask  such  witnesses  the  following  ques- 
tions :  "  From  what  you  know  of  her  health  and  strength, 
in  3rour  opinion  could  the  defendant  have  had  carnal  con- 
nection with  her  against  her  will,  without  resort  to  other 
means  than  the  exercise  of  his  ordinary  physical  powers?  " 
And  whether,  in  the  opinion  of  the  witness,  "  a  rape  could 
be  committed  on  a  female  who  had  borne  children,  and  was 
in  ordinary  health  and  strength,  without  resort  to  other  means 
than  the  exercise  of  ordinary  physical  powers."5  It  has 
been  held  proper  for  an  expert  to  state  what  effect  a  rape 
would  have  on  the  sexual  organs  of  the  female,  and  that 
upon  an  examination  of  the  prosecutrix  several  days  after 

»  Real  v.  People,  42  N.  Y.  282;  Sisson  v.  Conger,  1  N.  Y.  Sup.  Ct.  569. 

*  Hewlett  v.  Wood,  55  X.  Y.  635;   O'Brien  v.  People,  36  N.  Y.  276; 
Clapp  v.  Fullerton,  34  N.  Y.  190;   Howell  v.  Taylor,  18  N.  Y.  Sup.  Ct. 
214;  Higbee  v.  Guardian  Mutual  Life  Ins.  Co.,  53  N.  Y.  603;  People  v. 
Lake,  12  N.  Y.  358. 

•  State  v.  Smith,  Phillips  (N.  C.)  Law,  302. 

4  State  v.  Knapp,  45  N.  H.  148. 

5  Woodin  v.  People,  1  Parker  Cr.  Cas.  461.    And  see  Cook  v.  State,  24 
N.  J.  L.  843. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  95 

an  alleged  rape,  he  found  her  sexual  organs  inflamed.1  But 
the  witness  cannot  usurp  the  province  of  the  jury,  said  the 
court  in  the  case  cited,  by  expressing  the  opinion  that  such 
inflammation  "was  produced  by  having  a  violent  connection." 
Tke  opinions  of  medical  experts  are  received  upon  the  ques- 
tion of  whether  an  abortion  has  been  performed,2  and  that 
certain  medicines  are  known  as  abortives,  and  that  it  would 
be  a  dangerous  thing  to  give  certain  drugs,  in  almost  any  dose, 
to  a  pregnant  woman,  and  as  to  how  large  a  dose  would  be 
required  to  produce  an  abortion.3  It  has  been  held  that  the 
parts  of  the  person  upon  whom  instruments  were  alleged 
to  have  been  used  for  the  purpose  of  procuring  an  abor- 
tion, and  which  had  been  preserved  in  alcohol,  could  be 
submitted  to  the  jury  in  connection  with  the  testimony  of 
the  physician  who  made  the  post-mortem  examination.4  And 
medical  experts  have  been  held  competent  to  testify  that  cer- 
tain surgical  instruments  found  in  the  house  of  the  defend- 
ant, indicted  for  an  abortion,  were  adapted  to  produce  an 
abortion.5  Physicians  are  permitted  to  express  an  opinion 
upon  the  question  of  pregnancy.6  A  medical  witness  has  been 
allowed  to  testify  that  pregnancy  was  just  as  likely  to  take 
place  in  case  of  rape  as  in  the  case  of  a  voluntary  sexual 
connection.7  But  a  witness  who  has  had  no  peculiar  expe- 
rience and  possesses  no  peculiar  skill,  is  not  competent  to 
express  an  opinion  as  to  pregnancy.8 

In  a  prosecution  for  seduction  the  opinion  of  medical 
experts  has  been  held  admissible,'  who  testified  to  the  effect 
that  it  was  highly  improbable,  if  not  impossible  for  inter- 
course to  have  occurred  under  the  circumstances  described 
by  the  complainant  (i.  e.,  in  a  buggy)  ;  and  also  as  to 
the  pain  and  suffering  the  complainant  would  have  expe- 

i  Xoonan  v.  State,  U  The  Reporter,  320.    (Sup.  Ct.  of  Wis.,  May,  1882.) 

*  State  v.  Smith,  32  Me.  370;  State  v.  Wood,  53  N.  H.  484,  495. 
8  Regina  v.  Still,  30  Upper  Canada  (C.  P.),  30. 

4  Commonwealth  v.  Brown,  14  Gray,  419. 
s  Commonwealth  v.  Brown,  121  Mass.  69. 
8  State  v.  Wood,  53  N.  H.  484,  495. 
T  State  v.  Knapp,  45  N.  H.  148, 152. 

•  Boies  v.  McAlister.  12  Me.  308. 


96  EXPERT  TESTIMONY. 

rienced  had  such  an  act  taken  place.1  And  it  has  been  held 
that  a  woman  who  had  experience  as  a  nurse  in  childbirth, 
and  as  such  had  been  in  attendance  at  premature  births, 
might  express  an  opinion  as  an  expert  as  to  whether  the 
birth  of  a  child  was  premature.2  "The  witness,  by  her 
experience  and  observation,"  said  the  court,  "  appears  to 
have  acquired  knowledge  of  the  subjects  about  which  she 
was  testifying,  that  persons  generally  do  not  have.  To  the 
extent  of  this  peculiar  knowledge,  she  was  a  person  of 
skill  and  science,  and  her  opinion,  founded  upon  it,  was 
evidence  to  go  to  the  jury." 

§  64.  Opinions  In  Miscellaneous  Cases. —  A  medical 
expert  has  been  permitted  to  express  an  opinion  as  to  the 
permanency  of  a  person's  loss  of  vision.8  It  has  been  held 
proper  to  ask  a  physician  who  made  a  post-mortem  exami- 
nation as  to  the  condition  of  the  body  of  the  deceased  as 
to  fulness  or  paucity  of  blood.4  Upon  the  question  of 
whether  it  be  good  medical  practice  to  withhold  from  a 
patient  in  a  particular  emergency,  or  under  given  or  sup- 
posed circumstances,  a  knowledge  of  the  danger  and  extent 
of  his  disease,  medical  practitioners  are  allowed  to  give 
testimony.5  Experts  have  been  allowed  to  testify  as  to  the 
condition  of  human  remains  after  burial ;  as  to  how  long 
before  decay  would  set  in,  and  when  it  would  be  complete.8 
Medical  witnesses  have  testified  that  a  certain  routine  of 
diet  was  injurious  to  the  health  of  children.7  A  physician 
has  been  permitted  to  state  his  opinion  as  to  the  manner  in 
which  prolapsus  uteri  would  be  caused,  and  the  degree  of 
violence  that  would  produce  it.8  It  has  been  held  that  a 
physician  who  made  the  post-mortem  examination,  could  be 
asked  whether  the  appearance  of  the  extra vasated  blood  in 

1  People  v.  Clark,  33  Mich.  112. 

2  Mason  v.  Fuller,  45  Vt.  29. 

3  Tinney  v.  New  Jersey  Steamboat  Co.,  12  Abb.  Pr.  (N.  s.)  1. 

4  O'Mara  v.  Commonwealth,  75  Penn.  St.  424. 
8  Twombly  v.  Leach,  11  Gush.  405. 

«  State  v.  Secrest,  80  N.  C.  450,  453. 

T  Crowley  v.  People,  83  N.  Y.  464,  471. 

6  Napier  v.  Ferguson,  2  P.  &  B.  (New  Brunswick)  415. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  97 

the  neck  was  an  indication  of  mechanical  violence  or 
disease,  and  whether  the  clot  of  blood  found  could  have 
existed  twelve  hours  without  causing  death.1  Whether  a 
child  was  a  "  full  time  child,"  may  be  shown  by  any  physi- 
cian of  ordinary  experience  who  attended  at  the  birth.2 
Where  a  body  was  found  in  the  water,  it  has  been  held 
proper  to  ask  a  medical  expert,  who  made  the  post-mortem 
examination,  as  to  what  indications  would  have  been  found 
if  the  person  had  been  suffocated  first,  and  then  had  fallen 
into  the  water.3  A  physician  may  be  asked  as  to  the  cura- 
bility of  a  disease,  the  nature  and  cause  of  which  he  has 
described.4  So  a  surgeon  may  be  asked  whether  a  certain 
wound  given  on  the  chest  endangered  life.5  So  expert  testi- 
monv  is  admissible  as  to  the  injuries  likely  to  be  produced 
under  a  given  state  of  facts,  the  precise  facts  being  stated, 
on  which  he  is  to  base  his  opinion.6  A  physician  being 
skilled  in  anatomy,  may  testify  as  to  the  sex  of  a  person 
from  an  examination  of  the  skeleton,  but  it  is  an  error  to 
receive  the  opinion  of  a  non-professional  witness  on  such  a 
question.7 

§  65.  Opinions  of  Medical  Experts  in  Malpractice 
Cases. — In  actions  of  malpractice  brought  against  physicians 
or  surgeons,  for  the  improper  treatment  of  a  patient,  the 
opinions  of  medical  experts,  who  have  heard  the  testimony 
as  to  the  manner  in  which  the  case  was  treated,  are  received 
in  evidence  upon  the  question  whether  such  treatment  was 
proper  or  not.8  But  their  opinions  will -not  be  received  as 
to  the  general  skill  of  the  physician  or  surgeon  on  trial,9 

1  State  v.  Pike,  65  Me.  Ill,  114. 

2  Young  v.  Makepeace,  103  Mass.  50. 

3  Erickson  v.  Smith,  2  Abb.  App.  Decis.  (N.  Y.)  64. 

«  Matteson  v.  Xew  York  etc.  R.  R.  Co.,  35  N.  Y.  487. 

*  Rumsey  v.  People,  19  N.  Y.  41. 

6  Wendell  v.  Troy,  39  Barb.  (N.  Y.)  329. 

*  Wilson  v.  State,  41  Tex.  320,  321. 

8  Wright  v.  Hardy,  22  Wis.  348;  Hoener  v.  Koch,  84  111.  408;  Mertz  v. 
Detweiler,  8  VV.  &  S.  (Penn.)  376;  Heath  v.  Glisan,  3  Oregon,  67;  Rob- 
erts v.  Johnson,  58  N.  Y.  613,  615. 

9  Boydston  v.  Giltner.  3  Oregon,  118;  Williams  v.  Poppleton,  3  Oregon 

(7) 


98  EXPERT  TESTIMONY. 

although  it  has  been  said  that  they  may  state  facts  within 
their  knowledge  as  to  such  person's  skill.1  Neither  can  the 
o-eneral  reputation  of  the  medical  institution  at  which  the 
defendant  attended  lectures,  be  introduced  in  evidence  in 
such  cases.2  And  it  is  no  error  to' exclude  an  inquiry  of  a 
physician  as  to  what  the  defendant  had  told  him  about  the 
symptoms  in  cases  the  defendant  had  been  treating,  and  the 
course  of  treatment  he  had  been  pursuing,  and  the  opinion 
of  the  witness  from  these  statements  of  the  defendant,  and 
the  symptoms  he  himself  saw  in  the  cases,  as  to  the  propriety 
of  the  course  the  defendant  said  he  had  been  pursuing,  as 
showing  his  skill.3  But  medical  experts  may  be  asked  as  to 
the  nature  and  properties  of  the  medicines  employed  by  the 
defendant  in  the  particular  instance  in  question  ;*  and  also 
as  to  the  practice  of  physicians  in  regard  to  consultations.5 
It  is  also  competent  to  ask  whether  the  treatment  in  the 
particular  case  was  in  conformity  with  the  rules  and  practice 
of  the  medical  profession.6  And  a  physician  who  attended 
a  patient  who  had  been  under  the  care  of  another  physician, 
can  testify  as  to  what,  so  far  as  he  could  judge,  had  been 
the  first  physician's  treatment ;  in  what  respects  it  differed 
from  his  own  ;  what  effect,  so  far  as  he  could  judge,  it  had 
upon  the  plaintiff,  and  whether  or  not  he  saw  any  evidence 
that  the  plaintiff  had  been  injured  by  his  treatment.7  A 
medical  expert  may  be  asked  wjiether,  in  his  opinion,  the 
death  of  the  patient  was  or  was  not  the  result  of  any 
neglect  or  want  of  skill  in  the  attending  physician.8  Where 
the  action  was  brought  for  a  personal  injury  to  the  patient's 

139;  Leighton  v.  Sargent,  11  Foster  (N.  H.),  120;  Mertz  v.  Detweiler,  8 
W.  &  S.  376. 

1  Williams  v.  Poppleton,  3  Oregon,  139.    And  see  Boydston  v.  Giltner, 
3  Oregon,  118. 

2  Leighton  v.  Sargent,  11  Foster  (N.  H.),  120. 

3  Leighton  v.  Sargent,  supra. 

4  Mertz  v.  Detweiler,  8  W.  &  S.  376. 

5  Mertz  v.  Detweiler,  supra. 

6  Twombly  v.  Leach,  11  Cush.  (Mass.)  405. 

7  Barber  v.  Merriam,  11  Allen,  322. 

8  Wright  v.  Hardy,  22  Wis.  348. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  99 

limb,  caused  by  the  negligence  of  the  surgeon,  it  was  held 
proper  to  ask  a  medical  expert  as  to  the.  permanent  effects 
of  the  injury,  and  whether  the  patient  would  ever  recover 
the  use  of  his  limb.1  But  an  expert  cannot  express  an 
opinion  as  to  whether,  from  all  the  evidence  in  the  case,  the 
defendant  was  guilty  of  malpractice  or  not.2  That  is  the 
very  question  which  the  jury  is  to  try  and  determine  for 
themselves.3  In  an  action  for  damages  for  injury  to  the 
eyes,  producing  blindness,  for  negligent  and  unskillful 
treatment,  it  was  held  that  the  following  question  might  be 
properly  asked  of  an  expert:  "  Within  your  experience, 
have  you  ever  known  a  case  where  contagion  of  this  kind 
was  communicated,  of  gonorrheal  opthalmia,  by  the  use  of 
the  brush?"  The  question  was  proper  as  showing  the  im- 
probability of  such  an  occurrence.4 

§  66.  Right  to  Order  an  Examination  of  the  Person  by 
Medical  Experts  in  Cases  of  Alleged  Impotency.  —  Wher- 
ever impotency  has  been  acknowledged  as  an  impediment 
to  marriage,  the  courts  have  compelled  the  parties,  in  pro- 
ceedings to  obtain  a  decree  of  nullity,  to  submit  their  per- 
sons to  an  examination  by  experts,  whenever  such  an  exam- 
ination was  necessary  for  the  purpose  of  determining  the 
fact  of  impotency.  This  arises  from  the  necessity  of  the 
case,  especially  in  the  case  of  females,  for  impotency  on  the 
part  of  the  female,  which  cannot  be  cured  by  proper  medi- 
cal treatment  or  a  surgical  operation,  is  said  to  be  very 
rare.  And  divorce  for  the  impoteifcy  of  the  female  is  lim- 
ited to  cases  of  an  impervious  or  supposed  impervious 
vagina,  from  an  original  malformation,  or  the  effect  of 
some  supervening  infirmity  or  disease,  as  mere  sterility  is 
not  sufficient  ground  for  a  decree  of  nullity.  "  From  the 
very  nature  of  the  case,  it  appears  to  be  impossible  to  as- 
certain the  fact  of  incurable  impoteucy,  especially  where 

1  Wilt  v.  Vickers,  8  Watts  (Penn.),  227;  See  too,  Koberts  v.  Johnson, 
58  N.  Y.  613,  615. 

2  Hoener  v.  Koch,  84  111.  408. 

3  See  §  24,  chap.  HI. 

4  Doyle  v.  New  York  Eye  and  Ear  Infirmary,  SO  X.  Y.  631. 


100  EXPERT  TESTIMONY. 

the  husband  is  the  complaining  party,  except  by  a  proper 
surgical  examination  by  skillful  and  competent  surgeons  in 
connection  with  other  testimony.  *  *  *  And  I  have  no 
doubt  as  to  the  power  of  this  court  to  compel  the  parties, 
in  such  a  suit,  to  submit  to  a  surgical  examination,  when- 
ever it  is  necessary  to  ascertain  facts  which  are  essential  to 
the  proper  decision  of  the  cause."  l  As  it  is  essential  that 
the  impotency  should  be  incurable,2  it  is  necessary  that  the 
fact  of  incurability  should  be  made  out  by  the  evidence  of 
experts  who  have  made  a  personal  examination.  The  right 
of  the  court  to  order  such  an  examination,  and  the  necessity 
for  making  such  order,  can  no  longer  be  considered  as  in- 
volved in  any  doubt  whatever.3  And  when  the  wife  is  the 
plaintiff,  and  the  libel  states  her  to  have  been  a  spinster  at 
the  time  of  the  marriage,  it  is  usual  to  order  an  inspection 
of  her  person,  as  well  as  that  of  the  husband,  because  her 
virginity  and  capacity  implies  his  impotency.4 

§  67.  Who  should  be  Appointed  to  make  the  Examina- 
tion.—  According  to  the  English  practice  the  inspection  was 
intrusted  to  three  medical  experts,  either  two  physicians 
and  a  surgeon,  or  two  surgeons  and  a  physician,  the  adverse 
party  having  the  privilege  of  naming  one  or  more.5  But  in 
Welde  v.  Welde,6  decided  in  1830,  the  inspection  of  the  wife 
was  made  by  mid  wives,  while  that  of  the  husband  was  by 
physicians.  In  this  country  we  find  Chancellor  WALWORTH 
declaring  that  the  examination  should  be  made  by  "  physi- 
cians of  intelligence  or  skill,  who  by  study  or  practice  have 
made  themselves  well  acquainted  with  the  nature  and  pro- 
gress of  the  disease  which  has  caused  the  defendant's  inca- 
pacity." 7  And  in  this  same  case  the  Chancellor  said: 

1  Devenbagh  v.  Devenbagh,  5  Paige,  554. 
•    2  Brown  v.  Brown,  1  Haggard,  523. 

8  Briggs  v.  Morgan,  3  Phillimore,  325;  Welde  v.  Welde,  2  Lee,  580; 

H v.  P (L.K.),  3  Prob.  &  Div.  126;  G v.  G (L. 

K.),  2  Prob.  &.  Div.  287;  Newell  v.  Newell,  9  Paige,  26. 

4  Coote's  Ecc.  Pr.  367.    And  see  Norton  v.  Seton,  3  PhUlimore,  147. 

5  Coote's  Ecc.  Prac.  388.    And  see  Dean  v.  Aveling,  1  Robertson,  279. 

6  2  Lee,  580. 

7  Newell  y.  Newell,  9  Paige,  26. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  101 

"  The  defendant  must  therefore  submit  to  such  an  examin- 
ation by  one  or  more  respectable  gentlemen  of  the  medical 
profession,  who  may  be  named  for  that  purpose  by  the 
husband,  with  the  sanction  of  the  court.  Such 

medical  attendants  as  she  may  think  proper  to  call  in  are 
also  to  be  present  at  the  time  of  her  examination  by  the 
complainant's  professional  witnesses."  In  another  case  it 
is  said  that  in  the  selection  of  the  experts  due  regard  will  be 
paid  to  the  feelings  and  wishes  of  the  defendant.1  Proper 
respect  for  the  feelings  of  the  party  to  be  examined,  re- 
quires that  the  number  of  the  experts  appointed  to  make 
the  examination  should  be  restricted  to  the  smallest  number 
consistent  with  the  interests  of  justice. 

§  68.  When  Compulsory  Examination  in  such  Cases 
will  not  be  Ordered. —  Where  the  party  against  whom  im- 
potency  is  alleged,  has  already  submitted  to  an  examination 
of  competent  physicians,  whose  testimony  can  be  readily 
obtained,  it  is  said  that  a  further  examination  will  not  be 
insisted  on.2  But  where  the  wife  claimed  that  her  inca- 
pacity existed  now,  but  not  at  the  time  of  the  marriage, 
and  to  prove  her  claim  produced  the  certificate  of  two  med- 
ical gentlemen  who  had  examined  her  recently,  expressing 
their  belief  that  the  incapacity  had  arisen  since  the  marriage, 
Chancellor  WALWORTH,  upon  the  application  of  the  hus- 
band, ordered  another  examination,  declaring  that  under 
the  peculiar  circumstances  of  the  case,  the  complainant 
ought  not  to  be  compelled  to  leave  the  decision  of  his  cause 
to  rest  solely  upon  the  ex  parte  examination  made  by  the 
physicians  selected  by  the  wife.3 

§  69.  Summoning  Experts  to  assist  in  Determining  the 
Proper  Interrogatories. — The  usual  practice  in  such  cases 
has  been  to  direct  a  reference  to  a  master,  to  take  the  testi- 
mony and  report  thereon.  And  when  the  parties  do  not 
agree  as  to  the  interrogatories  to  be  propounded  on  the  ex- 

1  Devenbagh  v.  Devenbagh,  5  Paige,  554,  558. 

2  Brown  v.  Brown,  1  Haggard,  523,  note  o;  Devenbagh  v.  Devenbagh, 
554, 558. 

3  Newell  v.  Newell,  9  Paige,  26. 


102  EXPERT  TESTIMONY. 

amination,  they  must  be  settled  by  the  master,  who  may 
summon  physicians  or  surgeons  to  assist  him  in  determining 
the  necessary  interrogatories.  It  is  necessary  that  the 
defendant,  in  connection  with  the  examination  by  the 
experts,  should  answer  all  needful  inquiries  propounded  by 
them,  and  the  answers  should  be  given  under  oath.  This 
subject  was  considered  by  Chancellor  WALWORTH  at  an  early 
day  in  New  York.  "  The  interrogatories  to  be  propounded 
to  her  (the  defendant),"  he  says,  "  must  be  such  only  as 
relate  to  this  alleged  incapacity,  and  the  commencement 
and  progress  of  the  disease  by  which  it  has  probably  been 
produced.  And  if  the  parties  cannot  agree  upon  the  proper 
interrogatories,  after  having  consulted  with  their  physicians 
on  the  subject,  the  master  in  settling  the  interrogatories  to 
be  propounded  to  the  defendant  in  connection  with  her  ex- 
amination by  medical  gentlemen,  is  to  be  at  liberty  to  sum- 
mon before  him,  and  examine  on  oath,  any  physicians  or 
surgeons,  to  enable  him  to  decide  what  interrogatories  may 
be  necessary  or  proper  to  be  allowed."1 

§  70.  The  Subject  of  Inquiry — Structural  Defect — Im- 
practicability of  Consummation. — The  inquiry  of  the  ex- 
perts is  to  be  directed  not  merely  to  the  discovery  of  whether 
a  structural  defect  exists.  It  is  possible  that  although  no 
structural  defect  exists,  the  case  may  show  the  impractica- 
bility of  consummation.  In  a  recent  case  in  England,2  a 
divorce  was  obtained,  where  the  professional  witnesses 
swore  that  no  structural  defect  existed,  but  there  was  an 
impracticability  of  consummation.  As  this  is  important, 
we  quote  the  language  of  the  court :  "The  impossibility 
must  be  practical.  It  cannot  be  necessary  to  show  that  the 
woman  is  so  formed  that  connection  is  physically  impos- 
sible, if  it  can  be  shown  that  it  is  possible  only  under  con- 
ditions to  which  the  husband  would  not  be  justified  in 
resorting.  The  absence  of  a  physical  structural  defect  can- 
not be  sufficient  to  render  a  marriage  valid,  if  it  be  shown 
that  connection  is  practically  impossible,  or  even  if  it  be 

1  Newell  v.  Newell,  9  Paige,  26,  27. 

2  G v.  G ,  2  Prob.  &  Div.  (L.  R.)  287. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  103 

shown  that  it  is  only  practicable  after  a  remedy  has  been 
applied,  which  the  husband  cannot  enforce,  and  which  the 
wife,  whether  wilfully  or  acting  under  the  influence  of 
hysteria,  will  not  submit  to."1  But  a  merely  wilful  and 
wrongful  refusal  of  marital  intercourse  will  never  justify  a 
decree  of  nullity  by  reason  of  impotence,  although  if  per- 
sisted in  long  enough,  the  court  may  infer  that  it  arises 
from  incapacity.2 

§  71.  The  Testimony  of  the  Experts  in  such  Cases  to  be 
Received  with  Caution. — After  the  experts  have  made 
their  examination  and  given  their  testimony,  it  is  to  be  re- 
ceived and  weighed  with  great  caution,  and  Sir  John  Nichol 
goes  so  far  as  to  declare,  that  he  is  "  not  aware  that  it  has 
ever  been  held  sufficient  alone,"3  to  justify  a  decree  of 
nullity. 

§  72.  Defraying  the  Expenses  of  the  Examination  by 
the  Experts. — The  husband  must,  of  course,  furnish  all  the 
necessary  funds  to  pay  the  expenses  of  the  surgical  exami- 
nation.4 If  the  wife  refuses  to  submit  herself  to  the 
examination  ordered  by  the  court,  the  allowance  of  her  ali- 
mony may  be  suspended  until  she  consents  to  the  examina- 
tion as  directed.5  And  either  party  refusing  to  submit  to 
such  an  examination,  might  undoubtedly  be  punished  for 
contempt  of  court.6  But  as  a  refusal  to  submit  to  the  ex- 
amination has  been  regarded  as  evidence  of  incapacity,7  a 
party  will  perhaps  ordinarily  hesitate  before  refusing  com- 
pliance with  the  order  of  the  court  in  such  cases. 


iSee  also  P v.  L ,  3  Prob.  Division  (L.  R.),  73,  note  2; 

H v.  P ,  3  Prob.  &  Div.  (L.  R.)  126. 

2  S v.  A ,  3  Probate  Division  (L.  R.),  72. 

3  Norton  v.  Seton,  3  Phillimore,  147. 

4  Devenbagh  v.  Devenbagh,  5  Paige,  554,  558. 

5  Newell  v.  Newell,  9  Paige,  26. 

6  See  Schroeder  v.  The  C.,  R.  I.  etc.  R.  Co.,  47  Iowa,  375. 

7  Harrison  v.  Harrison,  4  Moore,  P.  C.   96,   103,  Lord  Brougham's 

opinion.    See  too,  H v.  P ,  3  Prob.  &  Div.  (L.  R.)  126.    The 

court  should  be  satisfied,  however,  that  there  was  no  collusion  between 
the  parties.     Pollard  v.  Wybourn,  1  Hagg.  Ecc.  R.  725;    Sparrow  v. 
Harrison,  3  Curteis,  16. 


104  EXPERT  TESTIMONY. 

§   73.   Compulsory  Examination  in    Criminal    Cases. — 

Whether  the  court  has  power  to  order  a  compulsory  exam- 
ination by  experts  of  the  person  of  a  defendant  in  a  criminal 
proceeding,  is  an  important  question  which  has  been  somewhat 
considered  by  the  courts.  The  question  turns  on  the  construc- 
tion to  be  placed  on  the  constitutional  provisions  which  pro- 
vide that  the  accused  shall  not  be  compelled  to  give  evidence 
against  himself  in  any  criminal  case.  Such  a  provision  is 
found  in  the  Constitution  of  the  United  States,  and  in  the 
Constitutions  of  the  several  States,  with  hardly  an  exception. 
In  Jacob's  Case l  the  Supreme  Court  of  North  Carolina,  in 
1858,  held  that  a  defendant  could  not  be  compelled  to  ex- 
hibit himself  to  the  inspection  of  a  jury  for  the  purpose  of 
enabling  them  to  determine  his  status  as  a  free  negro.  And 
this  ruling  was  approved  by  the  same  court  in  Johnson's 
Case2  in  1872.  Two  years  later  the  subject  again  came  up 
in  the  same  court  in  Garrett's  Case.3  In  that  case  it  ap- 
peared that  the  defendant  had  stated  to  persons  present 
on  the  night  of  the  homicide,  that  the  deceased  came  to  her 
death  by  her  clothes  accidentally  catching  fire  while  the  de- 
ceased was  asleep,  and  that  she,  the  defendant,  in  attempt- 
ing to  put  out  the  flames  burnt  one  of  her  hands.  At  the 
coroner's  inquest  the  defendant  was  compelled  to  unwrap 
the  hand  which  she  had  stated  was  burnt,  and  exhibit  it  to 
a  physician,  in  order  that  he  might  see  whether  there  was 
any  indication  of  burn  upon  it.  And  it  was  held  that  the 
actual  condition  of  her  hand,  although  she  was  ordered  by 
the  coroner  to  exhibit  it  to  the  doctor,  was  admissible  evi- 
dence. Jacob's  Case  was  distinguished  as  follows :  "The 
distinction  between  that  and  our  case  is  that  in  Jacob's  Case, 
the  prisoner  himself,  on  trial,  was  compelled  to  exhibit  him- 
self to  the  jury,  that  they  might  see  that  he  was  within  the 
prohibited  degree  of  color ;  thus  he  was  forced  to  become  a 
witness  against  himself.  This  was  held  to  be  error.  In 
our  case,  not  the  prisoner,  but  the  witnesses-,  were  called  to 

1  5  Jones,  259. 

2  67  N.  C.  58. 

3  71  N.  C.  58. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  105 

prove  what  they  saw  upon  inspecting  the  prisoner's  hand, 
although  that  inspection  was  obtained  by  intimidation."  In 
Nevada  it  has  been  held  that  the  court  could  lawfully  com- 
pel a  criminal  defendant,  against  his  objection,  to  exhibit 
his  bare  arm,  for  the  purpose  of  determining  whether  it  had 
on  it  certain  tatoo  marks.  The  question  of  identity  was 
raised,  and  a  witness  had  testified  that  he  knew  the  defend- 
ant, and  knew  that  he  had  tatoo  marks  (describing  them) 
on  his  right  forearm.1  This  is  one  of  the  best  considered 
cases  on  this  side  of  the  question.  The  court  declared  that 
the  Constitution  prohibited  the  State  from  compelling  a  de- 
fendant to  be  a  witness  against  himself,  because  it  was  be- 
lieved that  he  might,  by  the  flattery  of  hope  or  suspicion  of 
fear,  be  induced  to  tell  a  falsehood,  and  that  this  reason  was 
inapplicable  to  an  examination  of  the  person,  which  could 
not  in  the  very  nature  of  things  lead  to  a  falsehood.  "  The 
Constitution  means,"  said  the  court,  "  just  what  a  fair  and 
reasonable  interpretation  of  its  language  imports.  No  per- 
son shall  be  compelled  to  be  a  witness,  that  is  to  testify, 
against  himself.  To  use  the  common  phrase,  '  it  closes  the 
mouth  '  of  the  prisoner.  A  defendant  in  a  criminal  case  can- 
not be  compelled  to  give  evidence  under  oath  or  affirmation, 
or  make  any  statement  for  the  purpose  of  proving  or  dis- 
proving any  question  at  issue  before  any  tribunal,  court, 
judge,  or  magistrate." 

§  74 .  Compulsory  Examination  in  Criminal  Cases — The 
Subject  Continued. —  The  same  question  was  similarly  de- 
cided in  the  Court  of  Appeals  of  Texas,  in  1879,  although 
the  question  was  presented  in  a  different  form.  In  that 
case  testimony  was  held  admissible  that  the  footprints, 
which  the  prisoner  was  compelled  to  make  in  an  ash  heap, 
corresponded  with  those  made  on  the  night  of  the  murder 
about  the  premises  of  the  deceased.2  And  a  similar  ruling 
on  a  similar  state  of  facts  was  made  in  North  Caro- 
lina.3 But  a  different  conclusion  has  been  reached  in 

1  State  v.  Aa  Chuey,  14  Ney.  79;  s.  c.,  1  Crim.  Law  Mag.  634. 

*  Walker  v.  State,  7  Tex.  Ct.  of  App.  245,  265. 

3  State  v.  Graham,  74  N.  C.  646;  s.  c.,21  Am.  Rep.  493. 


106  EXPERT  TESTIMONY. 

Georgia,1  and  in  Tennessee2  on  a  like  state  of  facts. 

But  in  New  York  the  subject  was  presented  in  a  case 
which  involved  the  question  whether  the  prisoner  had  been 
delivered  of  a  child.  The  coroner  directed  two  physicians  to 
go  to  the  jail  and  make  an  examination  of  the  woman,  and 
determine  whether  she  had  recently  been  delivered  of  a 
child  or  not.  She  denied  having  been  pregnant,  and  objected 
to  being  examined  by  the  physicians.  But  on  being  told 
that  if  she  did  not  submit  to  the  examination,  she  would  be 
compelled  to  submit  by  force,  she  yielded,  and  her  private 
parts  were  examined  by  the  physicians  with  a  speculum, 
and  they  examined  her  breasts.  The  court  refused  to 
allow  the  physicians  to  testify,  declaring  that  such  an  ex- 
amination was  a  violation  of  the  spirit  and  meaning  of  the 
Constitution,  which  declares  that  "  no  person  shall  be  com- 
pelled in  any  criminal  case  to  be  a  witness  against  himself." 
"  They  might  as  well  have  sworn  the  prisoner,  and  com- 
pelled her  by  threats,  to  testify  that  she  had  been  pregnant 
and  been  delivered  of  the  child,  as  to  have  compelled  her, 
by  threats,  to  allow  them  to  look  into  her  person,  with  the 
aid  of  a  speculum,  to  ascertain  whether  she  had  been  preg- 
nant and  had  been  recently  delivered  of  a  child."  3  It  will 
be  observed  that  in  some  of  the  cases  in  which  the  question 
has  been  considered,  the  right  to  order  an  examination  of 
the  person  by  experts  was  not  directly  involved,  but  they  all 
involve  the  same  principle,  and  it  has  been  necessary  to  con- 
sider them  all  in  this  connection.  The  result  of  the  exam- 
ination of  the  cases  shows  a  decided  conflict  of  authorities, 
and  that  the  question  is  still  unsettled  and  open. 

§  75.  Compulsory  Examination  in  Actions  for  Dam- 
ages.—  It  has  been  held,  too,  that  in  an  action  for  damages 
for  personal  injuries,  the  plaintiff  may  be  required  by 
the  court,  upon  an  application  of  the  defendant,  to  sub- 
mit his  person  to  an  examination  by  physicians  and  sur- 

1  Day  v.  State,  63  Ga.  667;   Blackwell  v.  State,  13  Reporter,  271 ;  s.  c., 
3  Crim.  Law  Mag.  394. 

2  Stokes  v.  State,  5  Baxt.  519;  s.  c.,  30  Am.  Rep.  72. 

3  People  v.  McCoy,  45  How.  Pr.  216. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  107 

geons  for  the  purpose  of  ascertaining  the  character  and 
extent  of  his  injuries.1  The  court  in  this  case  declared  that 
refusal  to  submit  to  an  examination  so  ordered,  would  ren- 
der the  party  liable  to  punishment  for  contempt  of  court, 
and  if  continued  so  long  as  to  effectively  obstruct  the  prog- 
ress of  the  case,  all  allegations  as  to  personal  injury  might 
be  stricken  from  the  pleadings.  And  it  is  declared  that, 
"  under  the  explicit  directions  of  the  court,  the  physicians 
should  have  been  restrained  from  imperiling,  in  any  de- 
gree, the  life  or  health  of  the  plaintiff.  The  use  of 
anaesthetics,  opiates  or  drugs  of  any  kind,  should  have 
been  forbidden,  if  indeed  it  had  been  proposed,  and  it 
should  have  prescribed  that  he  should  be  subjected  to  no 
tests  painful  in  their  character."  The  above  case  was 
decided  in  1877,  and  the  conclusion  reached  was  arrived  at 
irrespective  of  authority,  the  court  declaring  that  it  was 
unable  to  find  any  case  in  which  the  question  had  been  con- 
sidered. But  the  same  question  had  been  considered  in 
New  York  in  1868,  and  it  was  there  held  that  the  court,  in 
an  action  for  malpractice  against  a  surgeon,  could  compel 
the  plaintiff  to  submit  her  person  to  an  examination  at  the 
hands  of  the  defendant's  experts.2  "It  is  not  proper," 
said  the  court,  "  that  the  cause  should  be  left  to  be  deter- 

1  Schroder  v.  The  K.  I.  &  P.  R.  R.  Co.,  47  Iowa,  375. 

2  Walsh  v.  Sayre,  52  How.  Pr.  334.     The  complaint  alleged  that  the 
defendant,  in  treating  the  plaintiff  for  an  injury  in  the  neighborhood  of 
her  hips,  had  so  negligently  and  unskillfully,  as  to  puncture  the  joint, 
causing  the  synovial  fluid  which  lubricates  the  cartilaginous  surface  of 
the  joint  to  escape,  thereby  seriously  and  permanently  injuring  the  hip, 
and  rendering  the  whole  leg  useless,  and  perhaps  rendering  its  amputa- 
tion necessary.    The  defendant  petitioned  the  court,  stating  that  since 
the  commencement  of  the  action,  he  had  endeavored  to  obtain  leave  to 
make  a  professional  examination  of  the  affected  part,  but  had  been  re- 
fused permission  so  to  do.     That  he  could  not  safely  proceed  to  trial, 
nor  properly  defend  the  action,  unless  he  could  have  a  personal  inspec- 
tion and  professional  examination  of  the  affected  parts,  and  praying  that 
said  examination  and  personal  inspection  by  himself  and  such  other 
skillful  and  eminent  surgeons  as  he  might  name,  might  be  had  under  the 
direction  of  the  sheriff,  or  a  referee  appointed  for  that  purpose,  at  such 
time  and  place,  and  in  such  form  or  manner,  as  to  the  court  might  seem 
just  and  proper. 


108  EXPERT  TESTIMONY. 

mined  on  the  evidence  of  two  or  three  surgeons,  selected 
by  the  plaintiff  out  of  the  whole  body  of  surgeons,  perhaps 
because  their  views  are  adverse  to  the  defendant's  ;  but  it  is 
"  eminently  proper  that  defendant  should  l^ave  the  benefit  of 
the  testimony  of  one  or  two  surgeons  of  his  own  selection, 
and  that  these  surgeons  should  have  the  requisite  means  of 
forming  a  correct  judgment,  one  of  which  is  the  examination 
of  the  affected  part." 

The  question,  too,  was  considered  in  Missouri  in  1873,  in 
an  action  against  a  railroad  company  for  personal  injuries. 
The  point  raised  was,  however,  very  summarily  disposed  of 
in  the  opinion,  and  the  right  to  order  the  examination 
denied.  The  court  merely  said  :  "  The  proposal  to  the  court 
to  call  in  two  surgeons,  and  have  the  plaintiff  examined 
during  the  progress  of  the  trial,  as  to  the  extent  of  her  in- 
juries, is  unknown  to  our  practice  and  to  the  law.  There 
was  abundant  evidence  on  this  subject  on  both  sides  ;  any 
opinion  of  physicians  or  surgeons  at  that  time  would  have 
only  been  cumulative  evidence  at  best,  and  the  court  had  no 
power  to  enforce  such  an  order."1 

§  76.  Detection  of  Poisons  by  Chemists. — It  is  said  that 
there  is  no  poison  accessible  to  the  public,  which  cannot  be 
detected  by  modern  methods  of  research,  and  oftentimes 
months  and  years  after  it  has  slain  its  victims.  "  There  is 
probably  no  limit  to  the  time  when  the  metallic  poisons 
might  not  be  discovered  after  the  demise  of  the  victim."2 
Experts  are,  therefore,  allowed  to  testify,  after  having  made 
a  chemical  analysis  of  the  contents  of  the  stomach,  as  to  the 
presence  of  poison  in  the  internal  organs  of  the  body.3  And 
a  person  who  is  a  chemist  and  toxicologist,  may  testify  as 
an  expert  concerning  the  effect  of  a  certain  poison  upon  the 
human  system,  and  it  is  not  necessary  that  he  should  be  a 
physician  or  surgeon.4  A  physician  is  also  competent  to 

1  Loyd  v.  Hannibal  etc.  K.  B.  Co.,  53  Mo.  509,  515,  516. 

2  Crim.  Law  Mag.  294.    Article  by  R.  Ogden  Doremug,  M.  D.,  LL.  D., 
Prof.  Chemistry  and  Toxicology  in  Bellevue  Hosp.  Med.  Coll. 

8  State  v.  Bowman,  78  N.  C.  509,  510. 
4  State  v.  Cook,  17  Kans.  394. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  109 

testify  upon  the  same  subject,1  and  may  be  asked  to  describe 
the  symptoms  which  appear  upon  the  administration  of  any 
particular  poison.2  They  may  express  an  opinion  that  death 
was  caused  by  the  administration  of  poison.3  In  the  case 
last  cited,  a  physician,  after  describing  the  symptoms,  gave 
his  opinion  that  the  deceased  died  from  the  effects  of 
arsenic,  and  in  answer  to  an  inquiry  put  to  him,  declared 
that  he  would  not  have  formed  such  an  opinion  had  he  not 
been  informed  that  there  was  arsenic  in  the  house,  but 
learning  that  fact,  he  reached  his  conclusion  from  observa- 
tion of  the  symptoms  of  the  case.  Counsel  sought  to 
exclude  the  opinion  upon  the  ground  that  it  was  not  a  med- 
ical opinion,  but  the  objection  was  not  sustained. 

§  77.  Chemical  Analysis  of  Poison  not  Necessary  Tyiien. 
— It  is  held  that  it  is  not  always  essential  that  there  should 
be  a  chemical  analysis  of  a  mixture,  in  order  to  qualify  an 
expert  to  express  an  opinion  as  to  its  ingredients,  and  to  its 
being  a  poison.4  In  the  case  cited;  which  was  the  trial  of  a 
prisoner  indicted  for  administering  a  poisonous  drug,  a 
bottle  was  produced  and  shown  to  a  medical  expert,  which 
contained  the  mixture  administered  by  the  defendant;  he 
stated  that  he  had  made  no  chemical  analysis  of  its  con- 
tents, but  thought  he  could  tell  its  ingredients  from  its 
smell,  taste  and  appearance.  v  He  was  allowed  to  give  an 
opinion  as  to  what  the  mixture  was  composed  of,  its  effect 
upon  a  woman  in  pregnancy  when  taken,  and  the  danger  to 
life. 

§  78.  Chemical  Analysis  of  Contents  of  Stomach. —  It 
has  been  held,  however,  that  in  a  case  of  poisoning,  chem- 
ical tests  and  an  analysis  of  the  contents  of  the  stomach  and 
bowels  are  essential  to  the  ascertainment  of  the  truth,  and 
should  be  resorted  to  in  all  cases  where  there  is  no  direct 
proof  of  the  act.  Symptoms  of  themselves,  without  other 

1  State  v.  Terrill,  12  Rich.  321. 

2  People  v.  Robinson,  2  Parker  Cr.  Cas^  236;  Polk  v.  State,  36  Ark. 
117,124. 

3  Mitchell  v.  State,  58  Ala.  418. 

4  State  v.  Slagh,  83  N.  C.  630. 


HO  EXPERT  TESTIMONY. 

circumstances,  are  pronounced  unreliable,  and  said  to  be 
inconclusive  evidence  of  guilt.1  But  in  all  cases  where  the 
opinions  of  experts  are  to  be  received  as  to  the  chemical 
contents  of  the  stomach  and  bowels,  it  is  necessary  that 
there  should  be  preliminary  proof  of  the  identity  of  the 
stomach  and  its  contents  and  that  the  same  have  not  been 
improperly  tampered  with.  Such  proof  should  be  first  sub- 
mitted, and  passed  upon  by  the  court,  before  the  opinions 
of  the  experts  should  be  received.2  In  the  case  last  cited  it 
is  declared  that  the  evidence  should  show  that  the  stomach 
taken  from  the  deceased  was  the  identical  stomach  whose 
contents  were  analyzed,  and  that  no  foreign  substance 
could  have  been  introduced  into  the  stomach,  or  into  its 
contents,  subsequent  to  the  death  of  the  deceased  and  prior 
to  the  chemical  analysis.  The  court  proceeded  to  say : 
"  It  was  not  necessary  that  the  stomach  should  have  been 
kept  continuously  under  lock  and  key  from  the  time  it  was 
taken  from  the  body  of  the  deceased  until  the  final  analysis, 
or  that  it  should  have  been  kept  continuously  sealed  up. 
And  it  was  not  necessary  that  all  possibility  of 
its  being  tampered  with  should  have  been  excluded." 
After  it  is  made  to  appear  that  no  mistake  has  been  made  as 
to  the  identity  of  the  stomach  audits  contents,  the  opinions 
of  practicing  physicians,  who  are  not  professional  chemists, 
are  received  as  to  the  analysis  of  the  stomach,  and  the  tests 
usually  applied  for  detecting  poison  in  such  cases.  Al- 
though it  is  said  that  the  opinions  of  those  who  are  not 
practical  chemists,  are  entitled  to  less  weight  than  those 
given  by  that  class  of  experts  whose  conclusions  are  based 
upon  experience  as  well  as  books.3 

§  79.  Order  of  Research  in  Analysis  for  Poisons. —  In 
the  analysis  of  a  poison  case  it  is  essential  that  the  toxicol- 
ogist  should  have  followed  a  scientific  order  of  research,  as 

1  Joe  v.  State,  6  Fla.  591. 

2  State  v.  Uook,  17  Kan.  394. 

3  State  v.  Hinkle,  6  Iowa,  380.    In  this  case  the  opinions  of  two  prac- 
ticing physicians  were  received.    One  of  them  stated  that  he  was  not  a 
professional  chemist,  but  understood  some   of   the  practical  details  of 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  Ill 

otherwise  it  is  quite  possible  for  him  to  fail  to  discover  the 
presence  of  the  poison.  It  is  important  for  counsel  in  the 
examination  of  such  witnesses  to  bear  this  fact  in  mind, 
and  we,  therefore,  append  this  order  of  research.  The  ex- 
amination should  be : 

1.  For  the  volatile  poisons,   such  as   hydrocyanic  acid, 
chloroform,  ether,  etc.     These  poisons  being  most  liable  to 
escape  detection,  as  they  may  be  lost  by  evaporation. 

2.  For  the  vegetable  poisons,  such  as  strychnine,  morphia, 
belladona,  etc.,  as  the  tests  employed  for  the  detection  of 
mineral    poisons   are   often    destructive   of   the   vegetable 
poisons. 

3.  For  the  various  acids,  alkalies,  metallic  poisons,  etc.1 
§  80.   Chemical  and  Microscopic  Examination  of  Blood. 

— Persons  accustomed  to  make  chemical  and  microscopic 
examination  of  blood  and  blood  stains,  are,  of  course, 
allowed  to  testify  whether  human  blood  can  be  distinguished 
from  animal  blood,  and,  if  so,  whether  a  particular  blood 
stain  was  made  by  human  or  animal  blood.2  Such  evidence 
has  been  received  in  numerous  cases,  and  without  any 
objection.  It  has  been  admitted  lately  in  two  especially 
notable  cases,  those  of  Rubenstein  in  New  York,  and  of 
Hayden  in  Connecticut.  The  controversy  is  not  over  the 
admissibility  of  such  testimony,  but  has  been  as  to  the  possi- 
bility of  distinguishing  human  from  animal  blood.  The 
possibility  of  so  doing  is  asserted  on  the  one  hand,3  and 

chemistry — that  portion  at  least  which  belonged  to  his  profession ;  that 
he  had  no  practical  experience  in  the  analysis  of  poisons,  until  he  anal- 
yzed the  contents  of  the  stomach  of  the  deceased ;  that  he  was  previously 
acquainted  with  the  means  of  detecting  poisons,  and  had  since  had  some 
experience  in  that  way.  The  other  declared  that  he  was  not  a  practical 
chemist,  but  understood  the  chemical  tests  by  which  the  presence  of  poi- 
son could  be  detected :  that  he  had  never  experimented  with  the  view 
of  detecting  strychnine  by  chemical  tests,  but  that  he  had  seen  experi- 
ments by  professors  of  chemistry,  and  that  there  was  one  test  much  re- 
lied on,  the  trial  of  which  he  had  witnessed. 

1  See  1  Crim.  Law  Mag.  309. 

2  See  Commonwealth  v.  Sturtivant,  117  Mass.  122, 124;  State  v.  Knight, 
43  Me.  1,  133. 

3  See  19  Am.  Law  Reg.   (N.  Js.)  529,  where  the  subject  is  discussed 
with  learning  and  ability. 


H2  EXPERT  TESTIMONY. 

denied  on  the  other.1  While  it  is  not  within  our  province  to 
enter  upon  this  discussion,  we  may  be  permitted  to  cite 
below,  the  opinion  of  a  distinguished  expert,  in  the  latest 
discussion  of  this  important  question.2  An  expert  may 
illustrate  his  testimony  touching  the  properties  of  human 
blood,  as  ascertained  by  chemical  tests  and  microscopic 
observation,  by  the  use  and  exhibition  to  the  jury  of  a  dia- 
gram. "It  would  be  very  difficult  for  an  expert  of  the 
most  accurate  and  extensive  observation,  to  exhibit  in 
language  with  precision,  so  as  to  be  understood,  those  deli- 
cate appearances  which  are  appreciable  only  by  the  sense  of 
vision.  Nothing  short  of  an  exact  representation  to  the 
sight  can  give  with  certainty,  a  perfectly  correct  idea  to  the 
mind.  *  *  A  diagram  approximating  in  any  degree  to 
perfect  representation,  when  exhibited  by  one  qualified 
from  knowledge  and  experience  to  give  explanations,  may 
do  much  to  make  clear  his  testimony  without  danger  of  mis- 
leading."3 In  a  criminal  trial  it  is,  of  course,  proper  that 

1  See  10  Cent.  Law  Journal,  183. 

2  "  The  whole  question  may  be,  1  think,  summed  up  as  follows : 

1.  Human  and  other  mammalian  blood,  the  corpuscles  of  which  are 
circular,  can  be  distinguished  by  the  criterion  of  form  from  that  of  all 
other  red-blooded  animals,  with  the  exception  of  that  of  the  monotre- 
mata  (ornithorhynchus  and  echidna) ,  which,  according  to  Gulliver,  have 
circular  corpuscles.    The  camel  family,  which  belong  to  the  class  mam  - 
malia,  have  oval  corpuscles,  as  do  all  those  not  belonging  to  the  mam- 
malia, with  the  exception  noted  above. 

2.  Human  blood  can  be  distinguished  from  that  of  other  red-blooded 
animals  having  circular  corpuscles,  in  every  case  of  individual  compar- 
ison, where  the  average  size  of  the  corpuscles  is  greater  than  those  of 
the  animal  with  which  it  is  compared,  or  where  the  largest  corpuscles 
are  larger  than  the  largest  of  those  of  the  animal  with  which  they  are 
being  compared. 

3.  Human  blood  may  be  distinguished  in  a  given  case,  from  that  of  an 
animal  (the  dog  for  example) ,  in  which  the  averages  of  the  corpuscles, 
and  the  size  of  single  corpuscles  in  individual  cases,  are  equal  to,  or  ex- 
ceed that  of  the  average  human  blood. 

4.  Under  the  same  conditions  of  actual  individual  comparison,  the 
blood  of  two  individuals  of  the  same  species  may  be  distinguished  from 
each  other. 

5.  Blood  may  be  distinguished  from  the  opposite  conditions  of  disease 
and  health,  as  between  individuals  of  the  same  species,  or  between  a 
human  being  and  a  lower  animal."    19  Am.  Law  Register,  (N.  S.)  605. 

3  State  v.  Knight,  43  Me.  1. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  113 

the  prisoner  should  be  allowed  to  have  the  articles,  which 
the  prosecution  allege  to  be  smeared  with  blood,  examined 
by  his  own  experts.  After  such  articles  have  been  offered 
in  evidence  by  the  government,  they  are  placed  in  the 
special  custody  of  the  court,  to  be  dealt  with  as  justice  re- 
quires. Then,  if  the  prisoner  desires  an  examination  to  be 
made  by  his  experts,  it  should  be  allowed  under  proper  pre- 
cautions. As  Mr.  Justice  LUDLOW  has  expressed  it,  "the 
court  should  see  to  it  that  they  are  guarded  from  intentional 
or  accidental  injury,  with  the  most  scrupulous  care,  and 
they  may  be  examined  in  open  court  by  any  persons  selected 
by  the  prisoner  or  his  counsel,  or  if,  from  necessity,  the 
examination  cannot  be  made  accurately  in  open  court,  they 
should  be  placed  in  the  hands  of  any  respectable  chemist  or 
physician  to  be  selected  by  the  prisoner,  with  the  consent 
of  the  court.  They  should  be  properly  identified  as  the 
very  articles  offered  in  evidence  by  the  Commonwealth, 
before  they  are  delivered  to  the  person  who  has  been 
selected  by  the  prisoner's  counsel,  and  for  this  purpose,  that 
person  should  receive  them  in  open  court,  and  they  should 
then  be  examined  in  the  presence  of  an  officer  or  officers  of 
the  court."  l 

§  81.  Whether  Ordinary  Witnesses  may  Testify  as  to 
Blood  Stains. — But  it  has  been  made  a  question  in  several 
cases,'  whether  ordinary  witnesses  may  testify  as  to  blood 
stains,  it  being  objected  that  no  one  but  a  chemist  is  quali- 
fied to  state  whether  stains,  apparently  made  by  blood,  arc 
really  blood  stains  or  not.  We  cannot  find  that  such  an 
objection  has  been  sustained  in  a  single  instance.  And  the 
rule  is,  that  ordinary  witnesses  are  competent  to  testify  that 
they  observed  spots  of  blood  upon  the  clothing,  etc.,  and 
no  chemical  analysis  of  the  substance  supposed  to  be  blood 
is  necessary.2  "The  testimony  of  the  chemist  who  has 
analysed  blood,  and  that  of  the  observer  who  has  merely 
recognized  it,  belong  to  the  same  legal  grade  of  evidence  ; 

1  Commonwealth  v.  Twitchell,  1  Brewster  (Perm.),  562. 
'Dillard  v.  State,  58  Miss.  368,  386;   People  v.  Greenfield,  30N.Y, 
Sup.  Ct.  462;  a.  c.  85  N.  Y.  75. 

(8) 


114  EXPERT  TESTIMONY. 

and  though  the  one  may  be  'entitled  to  much  greater  weight 
than  the  other  with  the  jury,  the  exclusion  of  either  would 
be  illegal.  *  *  Either  party  in  the  present  case  had  the 
right  to  resort  to  microscopic  or  chemical  tests,  but  neither 
was  bound  to  do  it,  and  neither  can  complain  of  the  other 
for  the  omission.  *  *  The  affairs  of  life  are  too  pressing 
and  manifold  to  have  everything  reduced  to  absolute  cer- 
tainty, even  in  the  administration  of  justice.  *  *  Micro- 
scopes, chemists  and  men  of  science  are  not  always  at  hand  ; 
and  criminals  are  neither  anxious  to  court  observation,  nor 
careful  to  preserve  the  evidences  of  their  guilt."  l 

§  82.  Blood  Stains — Proper  Question  Concerning. — It 
is  sometimes  very  important  to  determine  whether  blood 
stains  upon  clothing  were  occasioned  by  blood  flowing  upon 
the  outer,  or  upon  the  inner  surface  of  the  fabric.  If 
caused  by  blood  flowing  directly  upon  the  outer  surface  of 
the  fabric,  the  coloring  matter  of  the  blood,  which  is  sus- 
pended in  the  blood,  will,  of  course,  remain  on  the  outer 
surface,  whereas  it  would  be  on  the  inner  surface  of  the 
garment  if  it  came  from  within.  It  is  held,  therefore,  that 
one  who  is  qualified  by  chemical  observations  and  experi- 
ments, may  testify  whether  a  blood  spot  upon  a  garment 
could  have  been  occasioned  by  blood  flowing  directly  upon 
the  outer  surface  thereof.2  And  an  expert  may  testify  as 
to  the  direction  from  which  a  blood  stain  came,  as,  for  in- 
stance, that  it  came  from  below  upwards.3  But  in  a  case  in 
Mississippi ,  where  it  was  proposed  to  ask  the  experts  to  give 
their  opinions  as  to  the  relative  positions  of  the  combatants 
at  the  time  of  the  difficulty,  as  indicated  by  blood  upon  the 
shirt,  with  a  view  of  showing  by  the  blood  marks,  that  the 
prisoner  was  probably  prostrate  on  the  ground,  and  deceased 
on  top  of  him  when  the  stains  on  the  shirt  were  received, 
the  question  was  excluded  upon  the  ground  that  it  did  not 
involve  any  matter  of  science  or  skill,  and  that  the  jury 
must  judge  for  themselves.4 

1  People  v.  Gauzalez,  35  N.  Y.  49,  61. 

2  State  v.  Knight,  43  Me.  1, 133. 

3  Commonwealth  v.  Sturtivant,  117  Mas?.  122. 

4  Dillafd  v.  State,  58  Miss.  3G8,  387. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  115 

§  83.  Other  Cases  in  which  the  Opinions  of  Chemists 
have  been  received. — A  chemist  has  been  permitted  to 
testify  as  to  the  safety  of  camphene  lamps.1  In  this  case 
the  witness  was  held  competent  to  express  an  opinion  as  to 
the  safety  of  the  lamp,  although  he  had  never  experimented 
With  lamps,  or  made  or  used  camphene,  or  paid  any  partic- 
ular attention  to  camphene  lamps,  but  it  appeared  that  he 
had  studied  chemistry  with  a  distinguished  chemist,  that  he 
was  himself  an  instructor  in  chemistry,  and  acquainted  with 
gases,  having  experimented  with  them,  and  also  knew  how 
camphene  was  made.  And  in  an  action  which  involved  the 
question  whether  a  certain  fertilizer  was  merchantable,  and 
reasonably  suited  to  the  use  intended,  the  opinion  of  a 
chemist,  who  had  made  an  analysis  of  the  fertilizer,  was 
considered  competent  evidence,  although  not  conclusive  as 
to  the  suitableness  of  the  fertilizer  for  the  use  intended,2 
So  in  an  action  to  recover  damages  for  injury  to  land  by 
working  a  copper  mill  producing  noxious  gases,  from  which 
poisonous  substances  are  discharged,  the  testimony  of  ex- 
perts has  been  received,  showing  that  they  had  made  exper- 
iments with  gases  taken  from  the  land,  by  means  of  which 
they  had  obtained  copper.3  The  testimony  of  a  chemist  has 
been  received,  that  the  point  of  drainage  of  surrounding 
lands  by  a  filter  basin,  on  land  taken  for  that  purpose, 
could  be  determined,  and  it  has  been  held  proper  to  ask  him 
.whether  the  level  had  been  determined  by  experiment,  at 
which  water  stood  under  soil  generally,  and  that  he  could 
state  the  results  of  experiments  made  by  him  in  his  labora- 
tory in  proving  that  fact.4  A  chemist  might  properly  be 
asked  as  to  the  probability  of  spirits  evaporating  while  un- 
dergoing transportation  in  certain  casks.5  The  opinions  of 


1  Bierce  v.  Stocking,  11  Gray  (Mass.),  174. 

2  Wilcox  v.  Hall,  53  Ga.  635.   See  too,  Gossler  v.  Eagle  Sugar  Refinery 
103  Mass.  331,  that  certain  sugar  contained  3  per  cent,  of  sand. 

3  Lincoln  v.  Taunton  Manuf.  Co.,  9  Allen  (Mass.),  182.   See  too,  Salvitt 
v.  North  Brancepeth  Coal  Co.,  9  Ch.  App.  (L.  R.)  705. 

<  Williams  v.  Taunton,  125  Mass.  34. 

5  Turner  v.  The  Black  Warrior,  1  McAlister,  181,  184. 


116  EXPERT  TESTIMONY. 

chemists  are,  of  course,  received  as  to  the  constituent 
parts  of  a  compound.1  We  have  elsewhere  considered  the 
admissibility  of  the  opinions  of  chemists  as  to  the  nature 
of  inks,  and  the  age  of  writing,  in  cases  involving  the 
genuineness  of  handwriting.2 

§  84.  Diseases  in  Animals — Qualifications  of  Expert.2— 
In  determining  who  are  qualified  to  testify  as  experts  in 
reference  to  disease  in  animals,  it  has  been  laid  down  as 
follows  :  "A  liberal  rule  must  be  applied  in  regard  to  evi- 
dence as  to  diseases  in  animals,  as  it  is  rare  that  persons  are 
found  who  make  the  treatment  of  diseases  in  domestic  ani- 
mals a  distinct  profession,  or  attain  to  great  skill  or  science 
therein.  The  best  skill  and  science  that  can  be  expected, 
all  that  can  be  practically  admitted  in  such  cases,  will  be 
the  evidence  of  persons  who  have  had  much  experience, 
and  have  been  for  years  made  acquainted  with  such  diseases, 
and  with  their  treatment.  They  may  give  their  opinions 
upon  such  experience,  and  on  statements  of  fact  upon  which 
their  opinions  are  based,  as  some  evidence  to  be  considered 
and  weighed."3  And  to  the  same  effect  was  the  language 
of  Mr.  Justice  BLACKFORD  in  a  case  decided  in  Indiana  in 
1837.  In  that  case,  a  witness,  who  was  not  a  farrier,  was 
called  to  testify  as  to  the  disease  of  the  eyes  of  a  horse. 
The  witness  professed  to  understand  when  he  examined  a 
horse  whether  his  eyes  were  good  or  not,  though  [he 
acknowledged  that  there  might  be  diseases  of  the  eyes  of 
horses  with  which  he  was  unacquainted.  He  was  asked, 
whether,  from  his  knowledge  of  the  diseases  of  horses  eyes, 
ne  believed  the  disease  of  the  eyes  of  the  horse  in  question 
had  been  of  long  standing,  and  had  existed  before  the  ex- 
change of  horses  made  by  the  parties.  It  was  held  that  he 
should  be  permitted  to  answer,  and  it  was  said  :  "  We  have 
scarcely  any  veterinary  surgeons  in  our  country,  and  the 
opinions  of  men  of  such  knowledge  as  this  witness  ap- 
pears to  have,  must  be  admitted  in  cases  like  the  present.4 

1  Allen  v.  Hunter,  6  McLean,  303,  310. 

2  See  §§  134, 135. 

*  Slater  v.  Wilcox,  57  Barb.  604,  608. 
4 House  v.  Fort,  4  Blackf.  (Ind.)  293. 


EXPERT  TESTIMONY  IN  MEDICINE,  ETC.  117 

But  the  witness  should  be  one  who  has  some  special 
knowledge  and  experience  in  relation  to  the  diseases  of 
animals.  Hence,  a  witness  who  is  not  an  expert  cannot 
testify  whether  a  horse  is  or  is  not  sound,  or  as  to 
what  constitutes  unsoundness  in  a  horse.1  And  a  witness 
who  is  not  an  expert,  cannot  be  permitted  to  state  the  symp- 
toms and  appearance  of  cattle  that  die  from  want  of  feed.2 
Neither  can  such  a  witness  be  asked  whether  he  had 
observed  certain  appearances  in  horses  that  had  been 
hard  driven  and  then  exposed.3  So  the  opinion  of  a  witness 
that  a  wound  which  he  saw  inflicted  on  a  horse,  was  suffi- 
cient to  cause  his  death,  is  inadmissible,  unless  th'e  witness 
has  some  peculiar  skill  or  knowledge  as  to  the  effect  of  such 
wounds.4  But  any  witness  may  testify  whether  a  horse 
seemed  well  or  not,  that  being  matter  of  common  ex- 
perience.5 It  has  been  held  that  a  medical  witness,  who  has 
stated  that  he  had  read  various  standard  authors  on  the 
subject  of  diseases,  and  who  has  given  his  opinion  in  respect 
to  the  character  of  the  disease  of  which  the  animal  in  ques- 
tion died,  may  be  asked  for  "  his  best  medical  opinion, 
according  to  the  best  authority."6  Of  course  no  question 
is  raised  as  to  the  right  of  a  veterinary  surgeon  to  testify  as 
an  expert,  in  cases  relating  to  the  diseases  of  animals.7 

1  Spear  v.  Richardson,  34  N.  H.  428. 

2  Stonam  v.  Waldo,  17  Mo.  489. 

3  Moulton  v.  Seruton,  39  Me.  288. 

*  Harris  v.  Panama  R.  R.  Co.,  3  Bosw.  7. 

s  Spear  v.  Richardson,  supra.  And  see  Willis  v.  Quinaby,  11  Foster 
(N.  H.),  489. 

6  Pierson  v.  Hoag,  47  Barb.  (N.  Y.)  243. 

'  Pinney  v.  Cahill,  12  N.  W.  Reporter,  862;  s.  c.  14  The  Reporter,  337 
(Sup.  Ct.  of  Mich.,  June,  1882). 


118  EXPERT  TESTIMONY. 


CHAPTER  V. 


EXPERT   TESTIMONY   IN   THE    SCIENCE    OF    LAW. 
SECTION. 

85.  The  Law  as  a  Subject  for  the  Testimony  of  Experts. 

86.  Of  what  Laws  Courts  take  Judicial  Notice,  and  Expert  Testimony 

is  not  Received. 

87.  Of  what  Laws  Courts  do  not  take  Judicial  Notice,  and  Expert 

Testimony  is  Received. 

88.  Distinction  between  Written  and  Unwritten  Law  as  to  Mode  of 

Proof  by  Experts. 

89.  Presumption  that  Law  is  Unwritten. 

90.  Expert  Testimony  in  Connection  with  the  Written  Law. 

91.  Statutory  Provisions  in  Delaware,  Kentucky,  Maine,  Massachu- 

setts and  Wisconsin. 

92.  Proof  of  Written  Law  by  Experts  —  The  Practice  in  England. 

93.  Proof  of  Written  Law  by  Experts  —  The  Practice  in  England  — 

The  Subject  Continued. 

94.  Verification  of  Written  Law  by  Experts. 

95.  Presumption  that  the  Law  remains  Unchanged. 

96.  Who  are  Qualified  to  Testify  as  Experts  in  Foreign  Law. 

97.  Who  are  Qualified  to  Testify  as  Experts  in  Foreign  Law  —  The 

Subject  Continued. 

98.  Who  are  Qualified  to  Testify  as  Experts  in  Foreign  Law  — The 

Subject  Continued. 

99.  Mere  Knowledge  of  the  Foreign  Law  is  Insufficient. 

100.  Knowledge  of  the  Foreign  Law  must  have  been  Acquired  where. 

101.  Pvight  of  Expert  to  Cite  Text  Books,  Decisions,  Codes,  etc. 

102.  How  the  Citations  are  to  be  Regarded. 

103.  Testimony  as  to  Usage  and  Practice  of  Courts  of  Another  State. 

104.  Testimony  as  to  Powers  and  Obligations  of  an  Attorney  in  his 

Relations  to  his  Client. 

§  85.  The  Law  as  a  Subject  for  the  Testimony  of  Ex- 
perts.—  From  the  earliest  times  it  seems  to  have  been  the 
practice  of  the  English  judges  to  receive,  in  certain  cases, 


EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW.  119 

the  opinions  of  persons  skilled  in  the  law.  As  early  as  the 
time  of  Henry  VI.,  in  a  case  which  involved  a  question  re- 
lating to  civil  law,  we  find  it  laid  down  that  the  common  law 
judges  heard  a  bachelor  of  the  civil  law  "  argue  and  dis- 
course upon  the  difference  between  compulsions  prcedsa  et 
causativa,  as  men  that  were  not  above  being  instructed  and 
made  wiser  by  him."  1  And  in  another  case  during  the 
same  reign,  where  ex  commengement  had  been  pleaded,  and 
the  party  answered  that  he  ought  not  to  be  disabled  thereby 
as  an  appeal  was  pending,  the  common  law  judges  inquired 
of  those  who  were  well  versed  in  the  canon  law,  touching 
the  question  involved.2 

§  86.  Of  what  Laws  Courts  take  Judicial  Xotice,  and 
Expert  Testimony  is  not  Received. — Since  experts  cannot, 
as  a  general  rule,  be  examined  concerning  such  laws  as  the 
courts  take  judicial  notice  of,3  it  is  important  to  distinguish 
between  the  laws  which  will  be  judicially  noticed,  and  those 
which  must  be  proved  as  facts,  when  advantage  of  them  is 
desired. 

I.  We  shall  consider  first,  then,  those  laws  of  which 
courts  take  judicial  notice,  and  concerning  which,  therefore, 
the  testimony  of  experts  will  not  be  received,  as  not  being 
necessary  for  the  information  of  the  court.  Such  laws 
are  : 

1.  The  law  of  nations.4 

2.  The  law  merchant.5 

3.  The  maritime  law,  so  far  at  least  as  recognized  by  the 
law  of  nations.6 


1  7  Henry  VI.,  11. 

2  20  Henry  VI.,  25. 

3  Jewell  v.  Center,  23  Ala.  498,  505;  The  Clement,  2  Curtis,  3G3. 
«  The  Scotia,  14  Wallace,  171, 188. 

5  Edie  v.  East  India  Co.,  2  Burr,  1226;  Jewell  v.  Center,  25  Ala.,  498; 
Bradford  v.  Cooper,  1  La.  Ann.  325;  Goldsmith  v.  Sawyer,  46  Cal.  209. 
The  case  last  cited  holds  that  where  a  board  of  brokers  have  rules,  which 
are  not  rules  or  usages  of  trade  and  commerce  that  would  be  recognized 
without  their  adoption  by  the  board,  these  will  not  be  judicially.noticed, 
but  must  be  shown  by  experts  therein. 

8  Chandler  v.  Grieves.  2  II.  Bl.  GOG,  n;  Maddox  v.  Fisher,  14  Moore, 


120  EXPERT  TESTIMONY. 

4.  The  ecclesiastical  law,  for  the  purpose  of  determining 
how  far  it  is  a  part  of  the  common  law.1 

5.  The  courts  of  a  State  which  has  been  carved  out  of 
another  State,  take  judicial  notice  of  the  statutes  of  the  lat- 
ter State  passed  prior  to  the  separation.2 

6.  All  courts  take  judicial  notice  of  their  domestic  law.* 
And  the  common  law  of  a  State  which  had  no  political  ex- 
istence before  the  [Revolution,  is  the  common  law  as  modi- 
fied and  amended  by  the  English  statutes  passed  prior  to 
the  Revolution.4      But  it  is  held  that  in  those  States  where 
colonies   were   established   before  the   Revolution,  with  a 
power  to  legislate  for  themselves,  English  statutes  passed 
after  the  colonies  were  thus  established,  but  prior  to  the 
Revolution,  are  not  a  part  of  their  common  law.5 

7.  The  State  courts  take  judicial  notice  of  the  Federal 
Constitution,  and  of  its  amendments,6  as  well  as  of  Federal 
statutes.7 

8.  The  Federal  courts  take  judicial  notice  of  the  laws  of 
the  several  States  composing  the  national  government.8 

P.  C.  103;  Zugasti  v.  Lamer,  12  Moore,  P.  C.  331;  The  Scotia,  14  Wal- 
lace, 171, 188;  Taylor  on  Evidence,  §  5;  Wharton  on  Evidence,  §  298. 

1  Sims  v.  Maryatt,  17  Q.  B.  (79  E.  C.  L.)  292;  1  Boll.  Abr.  526;  6  Viu. 
Abr.  496. 

2  Delano  v.  Jopling,  1  Litt.  (Ky.)  417;  Stokes  v.  Macker,  62  Barb.  (N. 
Y.)  145;  Doe  v.  Eslava,  11  Ala.  1028;  Chouteau  v.  Pierre,  9  Mo.  3;  Ott 
v.  Soulard,  9  Mo.  581;   United  States  v.  Turner,  11  Howard,  663,  668; 
City  of  Brownsville  v.  Cavazos,  2  Woods,  293. 

3  State  v.  Jarrett,  17  Md.  309;  State  v.  O'Conner,  13  La.  Ann.  486; 
Pierson  v.  Baird,  2  Greene  (Iowa),  235;    Berliner  v.  Waterloo,  14  Wis. 
378;  Springfield  v.  Worcester,  2  Gush.  (Mass.)  52;  Division  of  Howard 
County,  15  Kans.  194;  Dolph  v.  Barney,  5  Oreg.  191. 

*  Coburn  v.  Harvey,  18  >Vis.  147;  Dutcher  v.  Culver,  24  Minn.  584. 
8  Sackett  v.  Sackett,  8  Pick.    (Mass.)   309,  316 ;   Commonwealth  v. 
Knowlton,  2  Mass.  534. 

6  Graves  v.  Keaton  3  Coldw.  (43  Tenn.)  8. 

7  Kessel  v.  Albetis,  56  Barb.  (N.  Y.)  362;  Papin  v.  Ryan,  32  Mo.  21; 
Morris  v.  Davidson,  49  Ga.  361;  Rice's  Succession,  21  La.  Ann.  614,  616; 
Bayly  v.  Chubb,  16  Grattan  (Va.) ,  284 ;  Minis  v.  Swartz,  37  Tex.  13 ;  Jones 
v.  Laney,  2  Texas,  342 ;  Semple  v.  Hagar,  27  Cal.  163 ;  United  States  v.  De 
Coursey,!  Pinney  (Wis.),  508;  Montgomery  v.  Deeley,  3  Wis.  709,  712. 

8  Junction  Railroad  Co.  v.  Bank  of  Ashland,  12  Wallace,  226,  229 ;  Ben- 
nett v.  Bennett,  Deady,  299,  311;   Merrill  v.  Dawson,  Hempstead,  563; 


EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW.  121 

§  87.  Of  what  Laws  Courts  do  not  take  Judicial  No- 
tice, and  Expert  Testimony  may  be  Received. —  II.  In 

passing,  in  the  second  place,  to  the  consideration  of  those 
laws  which  will  not  be  judicially  noticed,  and  as  to  which 
experts  may,  therefore,  testify,  we  find  : 

1.  That  courts  do  not  take  judicial  notice  of  the  laws  of 
foreign  States.1     As  said  by  Lord  LANGDALE  in  England  : 
"  With  foreign  laws  an  English  judge  cannot  be  familiar; 
there  are  many  of  which  he  must  be  totally  ignorant ;  there 
is  in  every  case  of  foreign  law,  an  absence  of  all  the  accu- 
rate knowledge  and  ready  associations  which  assist  him  in 
the  consideration  of  that  which  is  the  English  law."2    So  in 
this  country,  Mr.  Chief  Justice  MARSHALL  remarked  :  "  The 
laws  of  a  foreign  nation  designed  only  for  the  direction  of 
its  own  affairs,  are  not  to  be  noticed  by  the  courts  of  other 
countries,  unless  proved  as  facts."3 

2.  That  the  courts  of  one  State  will  not  take  judicial  notice 
of  the  laws  of  any  other  State.    This  is  upon  the  theory  that 
the  separate  States  which  together  constitute  the  nation, 
are,  as  respects  their  political  relations  to  each  other,  essen- 
tially foreign  countries,  whose  laws   must    be   proved    as 
facts.4     At  an  early  day  it  was  held  in  Vermont,  that  judi- 

Smith  v.  Tallapoosa  Co.,  2  Woods,  574,  576;  United  States  v.  Turner,  11 
How.  663,  668;  Owings  v.  Hull,  9  Peters,  607. 

1  Freemoultv.  Dedire,  1  P.  Wms.430;  Feaubert  v.  Turst,  Pre.  Ch.  207; 
Mostyn  v.  Farrigas,  Cowp.  174;  Male  v.  Roberts,  3  Esp.  163;  Smith  v. 
Gould,  4  Moore,  P.  C.  21 ;    Strother  v.  Lucas,  6  Peters,  763;  Armstrong 
v.  Lear,  8  Peters,  52;  United  States  v.  Wiggins,  14  Peters.  334;  Damess 
v.  Hale,  1  Otto,  13;   Bowditch  v.  Soltyk,  99  Mass.  138;  Owen  v.  Boyle. 
15  Me.  147;  Hosford  v.  Nichols,  1  Paige  (N.  Y.)  220;   McCraney  v.  Al- 
den,  46  Barb.  (N.  Y.)  274;  Monroe  v.  Douglass,  5  N.  Y.  447,  452. 

2  Nelson  v.  Bridport,  8  Beavan,  527. 

3  Talbot  v.  Seeman,  1  Cranch,  38. 

*  Drake  v.  Glover.  30  Ala.  382 ;  Mobile  Railroad  Co.  v.  Whitney,  39 
Ala.  468 ;  Forsyth  v.  Freer,  62  Ala.  443 ;  Newton  v.  Cocke,  10  Ark.  169 ; 
Hempstead  v.  Reed,  6  Conn.  480;  Brackett  v.  Norton, 4  Conn.  517;  Dyer 
v.  Smith,  12  Conn.  384;  Bailey  v.  McDowell,  2  Harrington  (Del.),  34; 
Stanford  v.  Pruet,  27  Ga.  243;  Mason  v.  Wash,  Breese  (111.),  39;  Irving 
v.  McLean.  4  Blackf.  (Ind.)  52;  Davis  v.  Rogers,  14  Ind.  424;  Johnson 
v.  Chambers,  12  Ind.  112;  Carey  v.  Cincinnati  etc.  R.  R.  Co.,  5  Iowa, 
357;  Taylor  v.  Banyan,  9  Iowa,  522;  Shed  v.  Augustine,  14  Kans.  282; 
Beauchamp  v.  Mudd,  Hardin  (Ky.),  163;  Stephonson  v.  Bannister,  3 


122  EXPERT  TESTIMONY. 

cial  notice  would  be  taken  of  the  laws  of  sister  States.1 
But  that  doctrine  was  subsequently  overruled.2  In  an  early 
case  in  New  Jersey,  a  similar  doctrine  was  intimated,3  but 
the  dicta  in  that  case  have  also  been  overruled  in  later  cases 
in  the  same  court.4  A  similar  position  was  taken  at  an  early 
day  in  Tennessee,  and  has  been  ever  since  .maintained.5 
And  now,  under  the  code  of  that  State,  the  Supreme  Court 
takes  judicial  notice  of  all  foreign  laws  and  statutes.6  In  a 
recent  case  in  Khode  Island,  the  court  took  judicial  notice 
of  a  law  of  the  State  of  New  York.7  An  exception 
should  perhaps  be  made  to  the  general  rule,  in  so  far 
that  where  a  State  recognizes  acts  done  in  pursuance 
of  the  laws'  of  another  State,  the  courts  of  the  first 
State  should  take  judicial  cognizance  of  the  said  laws, 
so  far  as  may  be  necessary  to  judge  of  the  acts  alleged  to 
be  done  under  them.  And  it  has  been  so  held.8  And  ill  a 
case  in  Pennsylvania,  it  was  held  that  a  State  court,  when 
its  judgment  would  be  liable  to  review  by  the  Supreme 
Court  of  the  United  States,  in  a  case  arising  under  the  laAV 

Bibb.  (Ky.)  369;  Dor?ey  v.  Dorsey,  5  J.  J.  Marsh.  (Ky.)  280;  Tyler  v. 
Trabue,  8  B.  Mour.  (Ky.)  30G;  Syme  v.  Stewart,  17  La.  Ann.  73;  Ander- 
son v.  Folger,  11  La.  Ann.  269;  Legg  v.  Legg,  8  Mass.  99;  Knapp  v. 
Abell,  10  Allen  (Mass.),  485;  Brimhall  v.  Van  Campen,  8  Minn.  13; 
Hoyt  v.  McNeil,  13  Minn.  390;  Hempbill  v.  Bank  of  Alabama,  6  Sm.  & 
M.  (Miss.)  44;  Babcock  v.  Babcock,  46  Mo.  243;  Morrissey  v.  Wiggins 
Ferry  Co.,  47  Mo.  521 ;  Ball  v.  Consolidated  Franklin  etc.  Co.,  32  N.  J. 
Law,  102,  104;  Uhler  v.  Semple,  5  C.  E.  Green  (N.  J.),  288;  Campion 
v.  Kille,  1  McCarter  (N.  J.),  229;  Hosford  v.  Nichols,  1  Paige  (N.  Y.), 
220;  State  v.  Twitty,  2  Hawks  (N.  C.),  248;  State  v.  Surtly,  2  Hawks 
(N.  C.),  441;  Evans  v.  Keynolds,  32  Ohio  St.  163;  Ripple  v.  Ripple,  1 
Rawle  (Penn.),  386;  VVhitesides  v.  Poole,  9  Rich.  (S.  C.)  68;  Jones  v. 
Laney,  2  Texas.  342;  Anderson  v.  Anderson,  23  Texas,  639;  Rape  v. 
Heaton,  9  Wis.  328;  Territt  v.  Woodruff,  19  Vt.  183;  Woodrow  v. 
O'Conner,  28  Vt.  776;  Walsh  v.  Dart,  12  Wis.  635. 

1  Middlebury  Coll.  v.  Cheney,  1  Vt.  348. 

2  Territt  v.  Woodruff,  19  Vt.  182;  Woodrow  v.  O'Conner,  28  Vt.  776. 

3  Curtis  v.  Martin,  2  N.  J.  Law,  290. 

«  Van  Buskirk  v.  Mulock,  18  N.  J.  Law,  184. 

5  Foster  v.  Taylor,  2  Overton,  191;   Coffee  v.' Neely,  2  Heisk.  311; 
Hobbs  v.  Railroad  Co.,  9  Heiskell,  873. 

6  See  Hobbs  v.  Memphis  etc.  R.  R.  Co.,  56  Tenn.  874. 

7  Paine  v.  Sclienectady  Ins.  Co.,  11  R.  I.  411. 

8  Carpenter  v.  Dexter.  8  Wallace,  513. 


EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW.  123 

of  a  sister  State,  would  take  judicial  notice  of  such  law.1  It 
has  been  held  in  Kansas  that  the  constitutions  of  sister 
States  will  be  judicially  noticed.2  Where  it  is  desired  to  in- 
troduce evidence  of  the  laws  of  other  States,  it  is  necessary 
that  they  should  be  pleaded.3 

§  88.  Distinction  between  Written  and  Unwritten  I.aw 
as  to  Mode  of  Proof  by  Experts. — In  this  country  a  dis- 
tinction is  taken  between  the  written  and  the  unwritten  law, 
and  while  the  latter  may  be  proven  by  the  testimony  of  ex- 
perts,4 the  former  can,  in  general,  only  be  shown  by  the  pro- 
duction of  the  written  law  itself,  duly  authenticated.5  In  an 
early  case,  Mr.  Chief  Justice  MARSHALL  said:  "  That  no 
testimony  shall  be  received  which  presupposes  better  testi- 
mony attainable  by  the  party  who  offers  it,  applies  to  foreign 
law,  as  it  does"  to  all  other  facts."6  Upon  this  principle, 
the  statute  itself  must  be  regarded  as  better  evidence  of 
what  it  contains,  than  is  the  testimony  of  any  individual, 
who,  though  he  may  know  the  general  purport  of  the  law, 

1  State  of  Ohio  v.  Hinchman,  27  Perm.  St.  479. 

-  Butcher  v.  Bank,  2  Kaiis.  70;  Dodge  v.  Coffin,  15  Kans.  277. 

3  Roots  v.  Merriwether,  8  Bush.  401 ;  Peck  v.  Hibbard,  26  Vt.  COS. 

<  Baltimore  &  Ohio  R.  R.  Co.  v.  Glenn,  28  Md.  287;  Ileberd  v.  Myers, 
5  Ind.  94;  People  v.  Lambert,  5  Mich.  349;  Merritt  v.  Merritt,  20  111.  65; 
Ennisv.  Smith,  14  How.  (U.  S.)  400,  426;  McRae  v.  Mattoon,  13  Pick. 
(Mass.)  53;  Owen  v.  Boyle,  15  Me.  147,  151;  Tyler  v.  Trabue,  8  B. 
Monr.  (Ky.)  306. 

5  Zimmerman  v.   Hesler,  32  Md.  274;  Kermott  v.  Ayer,  11  Mich.  181; 
Woodbridge  v.  Austin,  2  Tyler  (Vt.),  3(34;  Dauforth  v.  Reynolds,  1  Vt. 
265;    Territt  v.  Woodruff,  19  Vt,  1S4;    McNeill  v.  Arnold,  17  Ark.  154, 
167,  explaining  Barkman  v.  Hopkins,  11  Ark.  168;  Bowles  v.  Eddy,  33 
Ark.  645;  Emery  v.  Berry,  8  Foster  (X.  II.),  473;  Comparet  v.  Jernegan, 
5  Blackf.  (Ind.)  375;  Line  v.  Mack,  14  Ind.  330;  Hoes  v.  Van  Alstyne, 
20  111.  202;   McDeed  v.  McDeed,  67  111.  545;    Lee  v.  Matthews,  10  Ala. 
682;  Inuerurity  v.  Minis,  1  Ala.  660;  Spaulding  v.  Vincent,  24  Vt.  501, 
505;  Gardner  v.  Lewis,  7  Gill  (Md.),  379;  Robinson  v.  Clifford,  2  Wash. 
C.  C.  2;  United  States  v.  Otega,  4  Wash.  C.  C.  533;  Ennis  v.  Smith,  14 
How.  (U.  S.)  400,  426;  Toulandon  v.  Lachenmeyer,  1  Sweeny  (X.  Y.), 
45;    Isabella  v.  Pecot,  2  La.  Ann.  387;   Raynham  v.  Canton,  3  Pick. 
(Mass.),  293;  Bryant  v.  Kelton,  1  Texas,  434;    Willings  v.  Consequa,  1 
Peters  C.  C.  225;  Kenny  v.  Clarkson,  1  Johnson  (X.  Y.),  385;    Lincoln 
v.  Battelle,  6  Wend.  (X.  Y.)  475. 

6  Church  v.  Ilubbart,  2  Cranch,  187. 


124  EXPERT  TESTIMONY. 

may  not  carry  in  his  mind  so  minute  and  exact  a  knowledge 
thereof,  as  is  often  necessary  for  its  proper  application. 

§  89.  Presumption  that  Law  is  Unwritten. — It  has  been 
held  that,  in  the  absence  of  evidence  to  the  contrary,  it  will 
be  presumed  that  the  foreign  law  is  unwritten,  and  that 
parol  testimony  of  experts  in  such  law  will  be  received  upon 
this  assumption.  ''These  laws  are  generally  difficult  of 
proof.  It  would  be  a  very  expensive  matter  to  prove  them 
by  copies  authenticated.  It,  therefore,  shall  reasonably 
fall  on  the  parties  objecting  to  the  parol  proof,  to  show  that 
the  law  was  a  written  edict  of  the  country."  * 

§  90.  Expert  Testimony  in  Connection  with  the  Written 
Law. — While  the  general  rule  excludes,  in  this  country,  the 
testimony  of  experts  as  to  the  written  or  statutory  law,  yet 
such  testimony  has  been  received  when  the  question  \\as, 
not  so  much  as  to  the  language  of  the  written  law,  but  as  to 
what  was  the  law  altogether,  "  as  shown  by  its  exposition, 
interpretation  and  adjudication."  In  admitting  such  testi- 
mony in  Alabama,  as  to  the  law  of  Louisiana,  the  court 
said  :  "  The  exposition,  interpretation  and  adjudication  may 
never  have  been  evidenced  by  books  or  writings  ;  but  may, 
nevertheless,  have  become  well  understood,  as  the  rule  of  law 
deduced  by  the  court  from  the  written  words  of  the  code  upon 
a  particular  state  of  facts.  Upon  such  a  question,  the  testi- 
mony or  opinions  of  competent  witnesses  instructed  in  the 
law  of  that  State,  may  be  resorted  to."2  In  another  case  de- 
cided in  Illinois,  it  is  held  that  while  the  statute  of  a  foreign 
State  cannot  be  proved  by  parol,  yet  the  construction  given 
to  such  statute  by  the  tribunals  where  they  are  in  force, 
may  be  given  in  evidence  by  witnesses  learned  in  such  laws.3 
And  the  Supreme  Court  of  Rhode  Island  has  recently  per- 
mitted a  Spanish  lawyer,  formerly  of  Havana,  to  testify 
that  a  verbal  special  partnership  was  valid  under  the  laws 
of  Cuba ;  that  he  might  state  the  written  law  without  pro- 

1  Dougherty  v.  Snyder,  15  S.  &  R.  (Penn.)  84, 87.    And  see  Livingston 
v.  Maryland  Ins.  Co.,  6  Cranch,  274,  280. 

2  Walker  v.  Forbes,  31  Ala.  9. 

3  Hoes  v.  Van  Alstyne,  20  111.  202. 


EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW.  125 

ducing  it.1  The  court  declared  that  in  the  case  of  the 
Spanish  colonies  it  was  difficult  to  ascertain  what  their  law 
was  without  the  aid  of  an  expert,  their  law  being  composed 
partly  of  the  various  codes  of  Spain,  and  partly  of  the  va- 
rious decrees  contained  in  the  Recopilacion  de  las  Inclias,  and 
the  various  decrees  of  later  date.  In  the  course  of  its  de- 
cision the  court  says  :  "  There  are  many  cases  where  the 
evidence  of  a  professional  person,  or  one  skilled  virtute 
officii,  may  be  much  more  satisfactory  evidence  of  what  the 
law  is,  than  the  mere  exemplification  of  the  exact  words  of 
a  foreign  statute,  which  the  court  may  not  have  the  neces- 
sary knowledge  to  construe.  And  it  seems  to  us,  that  the 
requiring  an  exemplified  copy  is  pressing  the  rule  of  requir- 
ing the  best  evidence  to  an  extent  that  would  often  defeat 
the  ends  of  justice."  Chancellor  KENT,  in  an  early  case, 
also  permitted  a  Spanish  lawyer  to  testify  that  a  will  was 
executed  according  to  the  laws  of  Cuba,  without  the  produc- 
tion of  the  written  law.2  And  recently  in  Pennsylvania,  a 
witness  was  permitted  to  testify  as  to  the  laws  of  Baden, 
though  his  testimony  involved  a  statute.3  So  in  a  late  case 
in  Maryland,  a  New  York  lawyer  was  held  competent  to 
testify,  in  the  absence  of  opposing  proof,  whether  a  sale 
made  by  a  receiver  was  made  after  due  public  notice  and 
advertisement,  as  required  by  the  laws  of  New  York.4  In 
other  cases,  too,  in  this  country,  experts  have  been  allowed 
to  testify  as  to  the  law  of  another  State,  where  a  statute 
and  its  construction  have  been  involved.5 

§  91.  Statutory  Provisions  in  Delaware,  Kentucky, 
Maine,  Massachusetts  and  Wisconsin. —  In  a  few  States 
statutory  provision  has  been  made  with  reference  to  the 
proof  of  foreign  law,  which  seems  to  leave  it  to  the  discre- 
tion of  the  court,  to  require  the  production  of  a  copy  of  the 


1  Barrows  v.  Downs,  9  R.  I.  453. 

2  In  the  matter  of  Roberts'  Will,  8  Paige  (N.  Y.),  446. 

3  American  Life  Ins.  Co.  v.  Rosenagle,  27  P.  F.  Smith,  507. 

4  Consolidated  Real  Estate  &  Fire  Ins.  Co.  v.  Cashow,  41  Md.  59. 

8  Hooper  v.  Moore,  5  Jones  Law  (N.  C.)i  130;   Barkman  v.  Hopkins,  G 
Eng.  (Ark.)  157. 


126  EXPERT  TESTIMONY. 

written  law,  or  to  receive  the  testimony  of  experts  therein. 
In  Delaware,  Massachusetts  and  Wisconsin,  the  provision  is 
as  follows :  "  The  existence  and  the  tenor  or  effect  of  all 
foreign  laws  mav  be  proved  as  facts  by  parol  evidence  ;  but 
if  it  shall  appear  that  the  law  in  question  is  contained  in  a 
written  statute  or  code,  the  court  may,  in  their  discretion, 
reject  any  evidence  of  such  law  that  is  not  accompanied  by 
a  copy  thereof."  l  The  phraseology  of  the  Kentucky  and 
Maine  statutes  differ  somewhat  from  the  above  provision. 
The  Kentucky  statute  reads  as  follows:  "The  existence 
and  the  tenor  or  effect  of  all  foreign  laws  beyond  the  limits 
of  the  United  States,  may  be  proved  by  the  parol  evidence 
of  persons  learned  in  those  laws.  But  if  it  appear  that  the 
law  in  question  is  contained  in  a  written  statute,  the  court 
may  reject  such  parol  evidence,  unless  it  be  accompanied  by 
a  copy  of  the  statute."  2  While  in  Maine  it  runs  as  follows  : 
"  Foreign  laws  may  be  proved  by  parol  evidence,  but  when 
such  law  appears  to  be  existing  in  a  written  statute  or  code, 
it  may  be  rejected  unless  accompanied  by  a  copy  thereof. 
The  unwritten  law  of  any  other  State  or  territory  of  the 
United  States  may  be  proved  by  parol  evidence,  and  by 
books  of  reports  of  cases  adjudged  in  their  courts."  3 

§92.  Proof  of  Written  Law  by  Experts — The  Practice 
in  England. —  The  practice  in  England,  formerly  was  to 
require  the  production  of  the  written  law,  and  to  exclude  all 
proof  of  it  by  the  testimony  of  experts.  When  it  was  pro- 
posed to  call  a  person  conversant  with  the  law  of  Russia  as 
to  the  right  to  stop  goods  in  transitu,  LordKENYON  refused 
to  receive  his  testimony,  and  the  distinction  between 
written  and  unwritten  law  was  taken.  "Can  the  laws  of 
a  foreign  country,"  he  asks,  "  be  proved  by  a  person 
who  may  be  casually  picked  up  in  the  streets?  Can  a 
court  of  justice  receive  such  evidence  of  such  a  matter?  I 
shall  expect  it  to  be  made  out  to  me,  not  by  such  loose  cvi- 

1  Delaware  Rev.  Code   (1874),  p.  652,  §  8;  Massachusetts  Gen.  Stat. 
(1882),  p.  993,  §  73;  Wisconsin  Rev.  Stat.  (1878),  p.  1002,  §  4139. 
'    2  Gen.  Stat.  (1873) ,  p.  413,  §  18. 

3  Rev.  Stat.  (1871),  p.  653,  §  98. 


EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW.  127 

dence,  but  by  proof  from  the  country  whose  laws  you  pro- 
pose to  give  in  evidence,  properly  authenticated."  Lord 
ELLENBOROUGH  also  refused  to  receive  parol  evidence  as  to 
the  law  of  Surinam,  and  declared  that  the  law  being  in 
writing,  an  authenticated  copy  of  it  ought  to  be  produced.2 
Chief  Justice  GIBBS,  in  a  subsequent  case,  took  the  same 
distinction  between  the  written  and  unwritten  law,  declaring 
that  a  copy  of  the  former  must  be  produced.3  And  Sir 
GEORGE  HAY  had,  in  1776,  refused  to  accept  proof  of 
foreign  laws  "  by  the  opinions  of  lawyers,  which  is  the 
most  uncertain  way  in  the  world,"  and  required  certificates 
of  the  laws  to  be  laid  before  him.4  But  this  doctrine  is  no 
longer  observed  in  that  country,  and  the  rule  is  now  to  re- 
gard the  law  as  being  something  distinct  from  statutory  or 
common  law  taken  by  themselves  merely.  It  is  considered 
as  a  resultant  of  the  lex  scripta  and  lex  non  scripta,  and  as 
such  it  is  to  be  proved  as  any  other  fact  of  science,  by  wit- 
nesses duly  qualified  by  learning  and  experience.  As  early 
as  1811  the  opinions  of  Scotch  advocates  were  received  to 
prove  the  law  of  Scotland,  although  they  referred  to  printed 
authorities  as  forming  the  basis  of  their  opinions.5  It  was 
not,  however,  until  the  year  1845  that  the  principle  can  be 
said  to  have  become  settled,  of  admitting  expert  testimony 
as  to  law  considered  as  a  complex  resultant  of  the  written 
law,  and  its  interpretation  and  construction.  In  that  year 
a  French  advocate  was  permitted  to  testify  that  the  feudal 
law  was  abolished  in  Alsace,  de  facto,  in  1789,  by  the  revo- 
lution, and  de  jure,  by  the-  treaty  of  Luneville  ;  and  that  a 
formal  decree  existed  abrogating  the  feudal  law.6 

§  93.  Proof  of  Written  Law  by  Experts  —  The  Practice 
in  England  —  The  Subject  Continued. —  Lord  Chief  Jus- 
tice DENMAN,  in  sustaining  the  admission  of  the  testimony, 

1  Boehtlinckv.  Schneider,  3  Esp.  58.  This  case  criticised  by  Lord  Den- 
man,  C.  J.,  in  Baron  De  Bode's  Case.  8  Ad.  &  Ellis  (N.  s.)  -208. 

2  Clegg  v.  Levy,  3  Camp.  166. 

3  Millar  v.  Heinrick,  4  Camp.  155. 
*  Harford  v.  Morris,  2  Hagg.  430. 

5  Dalrymple  v.  Dalrymple,  2  Hagg.  54. 

6  Baron  De  Bode's  Case,  8  Ad.  &  Ellis  (N.  s.)  208. 


128  EXPERT  TESTIMONY. 

in  the  above  case,  said:,  "  There  is  another  general  rule: 
that  the  opinions  of  persons  of  science  must  be  received  as 
to  the  facts  of  their  science.  That  rule  applies  to  the  evi- 
dence of  legal  men  ;  and  I  think  it  is  not  confined  to  un- 
written law,  but  extends  also  to  the  written  laws  which  such 
men  are  bound  to  know.  Properly  speaking,  the  nature  of 
such  evidence  is  not  to  set  forth  the  contents  of  the  written 
law,  but  its  effect  and  the  state  of  the  law  resulting  from  it. 
The  mere  contents,  indeed,  might  often  mislead  persons  not 
familiar  with  the  particular  system  of  law.  The  witness  is 
called  upon  to  state  what  law  does  result  from  the  evi- 
dence." The  same  principle  is  laid  down  in  Earl  Nelson 
v.  Lord  Bridport?  where  the  court  declares  that  although 
the  written  law  is  produced,  and  due  proof  made  that  it  has 
not  been  repealed,  varied,  or  fallen  into  disuse,  and  that 
the  words  have  been  accurately  translated,  "  still  the  words 
require  due  construction,  and  the  construction  depends  on 
the  meaning  of  words  to  be  considered  with  reference  to 
other  words  not  contained  in  the  mere  text  of  the  law,  and 
also  with  reference  to  the  subject  matter,  which  is  not  insu- 
lated from  all  others.  The  construction  may  have  been, 
probably  has  been,  the  subject  of  judicial  decision  ;  instead 
of  one  decision,  there  may  have  been  a  long  succession  of 
decisions,  varying  more  or  less  from  each  other,  and  ulti- 
mately ending  in  that  which  alone  ought  to  he  applied  in 
the  particular  case."  It  is  evident  that  as  to  such  con- 
struction the  evidence  of  experts  is  required  for  the  instruc- 
tion of  the  court.  As  Lord  BROUGHAM  declared  in  the 
House  of  Lords,  in  the  celebrated  Sussex  Peerage  Case : 2 
"  The  witness  may  refer  to  the  sources  of  his  knowledge  ; 
but  it  is  perfectly  clear  that  the  proper  mode  of  proving  a 
foreign  law  is  not  by  showing  to  the  House  the  book  of  the 
law ;  for  the  House  has  not  organs  to  know  and  to  deal 
with  the  text  of  that  law,  and  therefore  requires  the  assist- 
ance of  a  lawyer  who  knows  how  to  interpret  it.  If  the 
Code  Napoleon  was  before  a  French  court,  that  court 

1  8  Beavan,  527. 

*  11  Cl.  &  F.  85,  115. 


EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW.       •       129 

would  know  how  to  deal  with  and  construe  its  provisions, 
but  in  England  we  have  no  such  knowledge,  and  the  English 
judges  must,  therefore,  have  the  assistance  of  foreign  law- 
yers." So  in  another  case  the  court  declares  that  the 
proper  course  to  be  pursued,  in  ascertaining  the  laws  of  a 
foreign  country,  is  to  call  a  witness  expert  in  such  laws, 
and  "  ask  him,  on  his  responsibility,  what  the  law  is,  and 
not  to  read  any  fragment  of  a  code,  which  would  only  mis- 
lead."1 A  person  skilled  in  the  laws  of  Bohemia  was 
therefore  permitted,  against  objection,  to  testify  as  to  the 
written  laws  of  that  country. 

§  94.  Verification  of  Written  Law  by  Experts. —  When 
it  is  necessary  to  prove  the  language  of  the  written  law  by 
producing  a  copy  thereof ,  the  question  arises  as  to  the  man- 
ner in  which  the  law  is  to  be  verified  or  authenticated.  In 
a  majority  of  the  States  express  provision  has  been  made 
for  the  admission  of  the  printed  statute  books  of  any  State. 
In  some  States  it  is  provided  that  the  statute  books  of 
another  State,  purporting  to  be  published  by  the  authority 
of  such  State,  may  be  received  in  evidence  without  further 
proof  ,a  In  others,  the  provision  is  that  statute  books  of  a 
sister  State,  purporting  or  proved  to  be  published  by  author- 
ity, or  proved  to  be  commonly  admitted  in  the  courts  of  such 
State,  may  be  received  in  evidence.3  In  three  of  the 
States,  that  statute  books  of  other  States,  purporting  to  be 
published  by  authority  or  commonly  admitted  in  the  courts 
of  such  State  may  be  received.4  In  two  of  the  States,  that 

1  Cocks  v.  Pin-day.  2  C.  &  K.  269. 

2  Alabama  Code  of  1876,  §  3045;  Arkansas  Dig.  of  Statutes   (1858), 
<-h.   67,   §   2;    Indiana,   Rev.   Stat.    (1881),   §  477;    Illinois,  Rev.  Stat. 
(1S74),  p.  490,  §   10;    Maine,  Rev.   Stat.  (1871),  p.   653,   §  97;   Mary- 
land, Rev.  Code  (1878),   p.  759,  §46;   Rhode  Island,  Public  Statutes 
(1882).  p.  589.  §  144;  Texas,  Rev.  Stat.  (1879),  p.  329,  §  2250. 

8  Florida,  Bush's  Dig.  (1872).  p.  547,  §  357;  Iowa,  Code  of  1873,  p.  573, 
§  3718;  Massachusetts,  Gen.  Stat.  (1882).  p.  943.  §  71;  New  York,  Code 
of  1871,  §  42(5,  and  new  Code,  §  942;  North  Carolina,  Battle's  Revi.-al 
(1873).  p.  23:5;  Ohio,  2  Rev.  Stat.  (1880),  p.  1280,  §  5244;  Tennessee, 
2  Statutes  (1871).  §  3800. 

4  Delaware.  Rev.  Code  (1874).  p.  652,  §  6;  Michigan,  2  Comp.  Laws 
(1871;,  p.  1708,§  78;  Minnesota  Statutes  (1878),  p.  £03,  §  57. 

09 


130  EXPERT  TESTIMONY. 

statute  books  of  other  States, printed  by  authority  or  proved 
to  be  commonly  admitted  in  the  courts  of  such  State,  ma}' 
be  read  in  evidence.1  While  in  a  few  others  the  provision 
is  that  statute  books,  printed  by  authority ,  may  be  received 
without  further  proof.2  In  Louisiana  the  statutory  provi- 
sion is  that  the  published  digests  and  statutes  of  other  States 
shall  be  received  in  evidence.3  While  in  New  Jersey  the 
provision  is  so  different  from  those  in  the  statutes  of  other 
States,  that  we  give  it  entire.4 

It  is  evident  that  in  those  cases  in  which  provision  is  made 
for  receiving  the  statute  books  of  sister  States,  which  are 
"  commonly  admitted,"  or  "proved  to  be  commonly  ad- 
mitted," in  the  courts  of  such  States,  the  evidence  of  per- 
sons practicing  in  the  courts  of  those  States  would  be 
received  to  authenticate  the  law,  by  showing  that  the  book 
containing  it  is  received  in  evidence  in  the  courts  of  the 
State  whose  law  it  purports  to  be.  It  has  been  held  that 
these  statutory  provisions  are  to  be  regarded  as  cumulative, 
and  that  they  do  not  repeal  the  common  law  mode  of 

1  Oregon,  Gen.  Laws  (1843-1872),  p.  253,  §  715;  Wisconsin,  Rev.  Stat. 
(1878),  p.  1002,  §  4136. 

2  Colorado,  Gen.  Laws  (1877),  p.  405,  §  1078;   Connecticut.  Gen.  Stat. 
(Rev.  of  1875),  p.  438.  §  19;  Georgia,  Code  of  1873,  p.  671,  §  3824;  Ken- 
tucky, Gen.  Stat.  (1873),  p.  413,  §  21.     And  see  1  Rev.  Stat.  of  Missouri 
(1879), p.  379,  §2272. 

*  Revised  Statutes  of  1870,  p.  283,  §  1440. 

4  "  The  printed  statute  books  and  pamphlet  session  laws  of  any  of  the 
United  States,  printed  and  published  by  the  direction  or  authority  of 
such  State,  shall  be  received  as  evidence  of  the  public  laws  of  such 
State,  in  any  court  of  this  State;  and  the  court  may  determine  whether 
any  book  or  pamphlet,  offered  as  such,  was  so  printed  or  published, 
either  from  inspection,  or  the  knowledge  of  the  judge  or  judges,  or  from 
testimony ;  and  no  error  shall  be  assigned  for  the  rejection  of  any  book  or 
pamphlet,  offered  as  such,  unless  it  be  proved  on  error  that  such  book  or 
pamphlet  is  received  as  a  statute  book  or  pamphlet  containing  the  session 
laws  of  said  State,  in  the  courts  of  such  State  whose  statute  book  or 
pamphlet  containing  the  session  laws,  it  purports  to  be;  nor  shall  any 
error  assigned  for  the  admission  of  such  book  or  pamphlet  be  sustained » 
unless  it  be  shown  in  support  thereof,  that  the  statute  offered  in  evi- 
dence or  some  material  pare  thereof,  was  not  in  force  in  such  State  at 
the  time  of  the  transaction  or  matter  to  which  it  was  offered  as  pertinent 
or  material.'"  Revision  (1709-1877).  p.  381,  §  22* 


EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW.  131 

proof.1  But,  as  the  Supreme  Court  of  Michigan  has  lately 
said,  foreign  statutes  should,  when  possible,  be  proved,  as 
provided  for  in  the  State  laws  and  the  Acts  of  Congress, 
rather  than  by  the  testimony  of  a  lawyer  who  had  practiced 
within  the  jurisdiction  where  they  are  in  force.2  And  in 
the  absence  of  all  statutory  provision  regulating  the  mode 
of  proof,  it  has  been  held  that  a  copy  of  the  foreign  statute 
should  be  produced,  which  the  witness  can  swear  was  recog- 
nized in  the  foreign  country  as  authoritative.3  So  in  an 
early  case  in  Pennsylvania,  the  court  received  a  printed 
copy  of  Irish  statutes  to  show  the  law  of  Ireland,  an  Irish 
barrister  having  testified  that  he  received  the  same  from  the 
King's  printer,  and  that  it  was  good  evidence  in  that 
country.4  And  in  England  a  book  was  received  as  evidence 
of  the  written  law  of  France,  which  purported  to  be  printed 
at  the  Royal  Printing  Office,  and  which  the  French  Vice 
Consul  produced,  testifying  that  it  contained  the  French 
code  of  laws  upon  which  he  acted,  and  that  the  office  where 
it  purported  to  be  printed  by  authority  of  the  government, 
was  the  government  printing  office.5  But  in  a  case  decided 
in  New  York,  the  court  refused  to  receive  a  book  in  the 
French  language,  purporting  to  contain  the  commercial  code 
of  France,  and  which  was  produced  by  the  Chancellor  of 
the  French  Consulate  at  New  York,  who  testified  that  it  was 
an  exact  copy  of  the  laws  furnished  by  the  French  govern- 
ment to  its  consul  in  New  York.6  And  in  New  Jersey,  prior 
to  the  adoption  of  any  statutory  provision  regulating  the 
matter,  the  courts  held  that  parol  proof  by  an  attorney, 
that  the  book  was  read  and  received  in  the  courts  of  the 
other  State  as  an  authentic  copy  of  their  statutes,  was  not 


1  Bieseiithrall  v.  Williams,  1  Duval  (Ky.),  330.    And  see  Chamberlain 
v.  Maitland,  5  B.  Monroe  (Ky.),  448. 

2  Kopke  v.  People,  43  Mich.  41. 

3  Spaulding  v.  Vincent,  24  Vt.  501,  505. 

4  Jones  v.  Maffett.  5  S.  &  R.  523. 

5  Lacon  v.  Higgins,  3  Starkie  (X.  P.)  ITS.    See  also,  Middtetoti  v.  Jan- 
verin,  2  Jlag.  Cons.  R.  437. 

6  Clianoine  v.  Fowler,  X  Wend.  173. 


132  EXPERT  TESTIMONY. 

sufficient,  but  that  it  should  be  authenticated  according  to 
the  Act  of  Congress,  or  by  sworn  copies  from  the  original 
statutes.1 

§  95.  Presumption  that  the  Law  remains  Unchanged. — 
When  a  witness  testifies  as  to  the  foreign  law,  the  question 
has  been  raised  whether  it  is  sufficient  for  him  to  show  the  law 
as  it  existed  at  a  period  prior  to  the  time  of  which  the  trial 
court  is  inquiring,  or  whether  it  is  necessary  that  his  testi- 
mony should  be  addressed  directly  to  the  very  time  of  the 
transaction  in  question.  It  has  been  held,  that  where  the 
statute  of  a  sister  State  is  shown  to  have  existed  at  a  time 
prior  to  that  of  the  transaction  in  question,  it  will  be  pre- 
sumed, in  absence  of  proof  to  the  contrary,  that  it  continued 
unchanged  to  the  period  in  controversy.2  In  a  recent  case 
in  New  York,  when  a  printed  copy  of  the  French  Code  was 
presented,  a  witness  testified  that  at  the  time  he  prac- 
ticed in  France,  the  book  was  commonly  received  by  the 
judicial  tribunals  of  that  country  as  evidence  of  the  existing 
law.  The  witness  was  licensed  to  practice  in  France  in 
1837,  and  ceased  to  practice  in  1862.  The  period  for  the 
existing  law  of  which  the  trial  court  was  seeking,  was  in 
1871,  and  the  question  was  raised  whether  the  law  having 
been  shown  as  it  existed  in  1862,  could  be  presumed  to  have 
continued  the  same  until  the  year  1871.  This  was  not  de- 
termined, but  the  court  evidently  had  a  serious  doubt 
whether  such  presumption  could  be  entertained.8 

§  96.  Who  are  Qualified  to  Testify  as  Experts  in 
Foreign  Law. — In  order  to  prove  the  law  of  a  foreign 
country,  it  is  necessary  that  the  witnesses  produced  to  tes- 
tify in  respect  to  it,  should  be  more  than  ordinarily  capable 
of  speaking  upon  the  subject.  It  does  not,  however,  appear 
to  be  essential  that  the  witnesses  should  in  all  cases  be  law- 
yers, and  it  has  even  been  held  to  be  unnecessary  that  they 
should  have  held  an  official  appointment,  in  which  it  has 

1  Van  Bnskirk  v.  Hillock,  18  X.    J.   Law,   184,    overruling,   Hale  v. 
Ross,  3  X.  J.  Law,  373.    See  Condit  v.  Blackwell,  19  N.  J.  Eq.  193, 196. 
8  Peck  v.  Hibbard,  26  Vt.  69S;  Raynham  v.  Canton,  3  Pick.  (Mass.)  29. 
8  Hynes  v.  McDermott.  82  X.  Y.  41. 


EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW.  133 

been  necessary  for  them,  in  the  discharge  of  their  official 
duties,  to  make  themselves  acquainted  with  the  law.  It  has 
been  declared  that  "  all  persons  who  practice  a  busines  or 
profession  which  requires  them  to  possess  a  certain  knowl- 
edge of  the  matter  in  hand,  are  experts  so  far  as  expertness 
is  required."1  The  question  which  this  case  involved,  re- 
lated to  the  Belgian  law  on  the  subject  of  the  presentment 
of  promissory  notes,  and  the  point  raised  was  whether  a  wit- 
ness called  as  an  expert  to  testify  as  to  such  law,  must  be 
a  professional  man,  one  who,  by  virtue  of  his  office,  might 
be  said  to  be  peritus.  It  was  held  not,  and  one  who  had 
been  a  merchant  and  stock-broker  at  Brussels,  was  per- 
mitted to  testify  as  an  expert.  "  I  think,"  said  Mr.  Justice 
MAULE,  '*  that  inasmuch  as  he  had  been  carrying  on  a  busi- 
ness which  made  it  his  interest  to  take  cognizance  of  the 
foreign  law,  he  does  fall  within  the  description  of  an  expert." 
And  in  a  case  recently  decided  in  the  Supreme  Court  of 
Pennsylvania,  it  was  held  that  the  law  of  a  foreign  country 
on  a  given  subject  might  be  proven  by  any  person,  who, 
though  not  a  lawyer,  or  not  having  filled  any  public  office, 
was  or  had  been  in  a  position  to  render  it  probable  that  he 
would  make  himself  acquainted  with  it.  And  a  pastor  of  a 
church  in  a  foreign  country  was  permitted  to  testify  that  the 
church  records  had  been  kept  according  to  the  laws  of  that 
country.2 

§  i)  7 .  Who  are  Qualified  to  Testify  as  Experts  in  For- 
eign Law  —  The  Suhject  Continued. —  So  it  has  been  held 
in  England  that  a  Kornan  Catholic  bishop  holding  the  office 
of  coadjutor  to  a  vicar-apostolic  in  England,  was  to  be  con- 
sidered, by  virtue  of  his  office,  as  a  person  skilled  in  the  mat- 
rimonial law  of  Rome,  and,  therefore,  competent  as  a  wit- 
ness to  prove  that  law.3  And  in  this  country  it  is  held  that 
a  priest  or  minister  of  another  State  is  a  competent  witness 
to  prove  the  laws  of  such  State  as  to  marriage.4  In  another 

1  Vander  Donckt  v.  Thellusson,  8  Man.  G.  &  S.  (65  E.  C.  L.)  812. 

2  American  Life  Ins.  Co.  v.  Rosenagle,  77  Penn.  St.  507. 
s  Sussex  Peerage  Case,  11  Cl.  &  F.  85. 

<  Bird  v.  Commonwealth,  21  Grattan  (Va.)  800,  808.    And  in  Phillips 


134  EXPERT  TESTIMONY. 

case  it  is  said  that  the  foreign  law  "  may  be  proved  by  pro- 
fessional men,  or  others  conversant  with,  and  having  the 
means  of  knowledge."  l  In  Texas  the  practice  has  long 
prevailed  of  receiving  the  evidence  of  intelligent  Mexicans, 
not  lawyers,  as  to  the  laws  of  Spain  and  Mexico  in  litiga- 
tion pertaining  to  lands,  and  such  evidence  is  pronounced 
by  the  courts  of  that  State  to  have  been  "  valuable  in  giv- 
ing information  as  to  the  construction  given  to  the  laws  of 
Spain  and  Mexico  by  the  officers  who  executed  them."  2 
In  New  Hampshire  the  court  declares  that  in  proving  the 
laws  of  a  foreign  country,  the  testimony  of  any  person, 
whether  a  professional  lawyer  or  not,  is  competent,  pro- 
vided he  appears  to  the  court  to  be  well  informed  on  the 
subject.3  And  in  that  State  it  has  been  held  that  a  witness 
who  was  not  a  lawyer,  but  who  for  several  years  had  acted 
as  a  magistrate  in  Canada,  and  had  long  been  engaged  in 
mercantile  business  there,  and  had  become  acquainted  with 
the  law  in  relation  to  notarial  instruments,  was  competent 
to  testify  that  according  to  the  law  of  that  country  general 
powers  of  attorney  must  be  executed  before  a  notary,  and 
that  it  was  part  of  the  sworn  duty  of  every  notary  not  to 
suffer  any  original  paper  executed  before  him  to  be  taken 
out  of  his  custody,  and  that  notarial  copies  of  such  instru- 
ments are  received  in  all  the  courts  of  Canada,  without 
further  proof  of  the  execution  of  the  original.4  In  an  early 
case  in  New  York  Mr.  Justice  SPEXCER  declares  that 
"  courts  of  law  will  receive  evidence  of  the  common  law, 
from  intelligent  persons  of  the  country  whose  laws  are  to  be 
proved," '  And  in  Illinois  it  is  said  that  it  may  be  proven 
by  the  testimony  of  competent  witnesses  instructed  in  its 


v.  Gregg,  10  Watts  (Perm.),  158, 169,  witnesses  who  were  not  lawyers, 
were  received  to  testify  as  to  what  constituted  a  lawful  marriage  in  Mis- 
sissippi a  half  century  before. 
1  Jones  v.  Maffett,  5  Serg.  &  E.  (Fenn.)  523,  532. 

*  State  v.  Cuellar,  47  Texas,  304. 
3  Hall  v.  Costello,  48  X.  H.  179. 
<Pickard  v.  Bailey,  6  Foster  (Jf.  H.),  169. 

*  Kenney  v.  Van  Home,  1  Johns.  (X.  Y.)  394. 


EXPERT  TESTIMONY  IX  THE  SCIENCE  OF  LAW.  135 

laws.1  Ill  Tennesse,  that  it  may  be  proven  by  jurists  and 
legal  characters  experienced  therein.2  In  Arkansas,  it  may 
be  proven  by  witnesses  skilled  therein.3 

§  98.  Who  are  Qualified  to  Testify  as  Experts  in  For- 
eign Law  —  The  Subject  Continued. —  In  the  light  of  the 
foregoing  decisions  it  must  be  regarded  as  the  rule  in  this 
country,  at  least,  that  it  is  not  necessary  that  an  expert  in 
foreign  law  should  have  been  a  member  of  the  bar  in  the 
foreign  State  whose  laws  he  is  called  to  prove.  This  pre- 
cise question  was  recently  raised  in  the  United  States  Court 
of  Claims,  where  a  witness  who  bad  never  been  admitted 
to  the  French  bar,  was  held  competent  to  testify  as  to  the 
law  of  France.4  But  it  appeared  that  the  witness  had 
studied  the  law  as  a  profession,  had  been  graduated  at  the 
University  of  Paris,  had  since  then  been  engaged  in 
legal  pursuits,  and  was  then  employed  by  the  French 
government  as  legal  adviser  of  the  legation  at  Wash- 
ington. In  a  still  more  recent  case  in  England  the 
Persian  ambassador  at  Vienna  was  allowed  to  testify  as 
an  expert  in  the  law  of  Persia ;  but  this  was  after  he 
had  testified  that  in  Persia  there  were  no  professional  law- 
yers ;  that  the  administration  of  the  law  was  left  entirely 
to  ecclesiastics,  and  that  all  persons  in  the  diplomatic  ser- 
vice of  that  country  were  required  to  be  thoroughly  versed 
in  the  law  ;  and  that  he  had,  therefore,  studied  and  become 
acquainted  with  it.5  And  it  is,  undoubtedly,  true,  that  in 
England  a  somewhat  more  rigid  rule  is  applied,  than  is  in- 
sisted on  in  this  country,  in  determining  who  are  qualified 
to  give  testimony  as  experts  in  foreign  law.  In  one  case 
the  Master  of  the  Rolls  refused  to  act  on  the  affidavit 
of  one  describing  himself  as  a  "  Solicitor  practising  in  the 
Supreme  Courts  of  Scotland,  Edinburgh,"  and  required  the 
opinion  of  an  advocate  as  to  the  Scotch  law.6 

1  Milwaukee  &  St.  Paul  K.  Co.  v.  Smith,  74  111.  107. 

2  Wilson  v.  Smith,  13  Teun.  399. 

3  McNeill  v.  Arnold,  17  Ark.  154,  167. 

4  Diiuphin  v.  United  States,  6  Ct.  of  Claims,  221. 

5  The  Goods  of  Dost  Aly  Khan,  6  Prob.  Div.  (L.  R.)  0. 

6  In  >vTodd,  19  Beavan,  582.    The  opinions  of  Scotch  advocates  were 


136  EXPERT  TESTIMONY. 

In  1861,  the  British  Parliament  passed  a  very  wise  and 
useful  act,  by  which  it  was  intended  that  all  questions  of 
foreign  law  should  be  referred  to  the  courts  of  the  foreign 
country  to  be  there  decided  and  certified  back.  The  act  as 
yet  remains  a  dead  letter,  no  action  having  been  taken  in 
accordance  with  its  provisions  for  carrying  it  into  effect. 
We  give  the  enactment  in  the  note  below.1 

§  99.  Mere  Knowledge  of  Foreign  Law  is  Insuffi- 
cient.—  It  was  held  in  an  English  case  that  one  who  was 
not  a  lawyer,  and  who  had  no  special  qualifications,  but 
who  had  resided  in  Scotland  for  twenty  years,  and  who 
swore  that  he  was  acquainted  with  the  law  of  marriage,  was 
competent  to  state  what  the  Scotch  law  of  marriage  was.2 
It  did  not  appear  that  the  witness  had  any  peculiar  means 
of  information  as  to  the  law.  This  case  has  been  disap- 

also  received  in  Williams  v.  Williams,  3  Beavan.  547;  and  in  Hitchcock 
v.  Clendinen,  12  Beavan,  534. 

1  "If,  in  any  action  depending  in  any  court  of  a  foreign  country,  or 
State/  with  >\hose  government  Her  Majesty  shall  have  entered  into  a 
convention  as  above  set  forth  (i.e.,  for  the  purpose  of  mutually  ascertain- 
ing the  law),  such  court  shall  deem  it  expedient  to  ascertain  the  law  ap- 
plicable to  the  facts  of  the  case  as  administered  in  any  part  of  Her 
Majesty's  dominions,  and  if  the  foreign  court  in  which  such  action  may 
depend,  shall  remit  to  the  court  in  Her  Majesty's  dominions  whose  opin- 
ion is  desired,  a  case  setting  forth  the  facts  and  questions  of  law  arising 
out  of  the  same,  on  which  they  desire  to  have  the  opinion  of  a  court 
within  Her  Majesty's  dominions,  it  shall  be  competent  to  any  of  the 
parties  to  the  action  to  present  a  petition  to  such  last  mentioned  court, 
whose  opinion  is  to  be  obtained,  praying  such  court  to  hear  parties  or 
their  counsel,  and  to  pronounce  their  opinion  thereon  in  terms  of  this 
act,  or  to  pronounce  their  opinion  without  hearing  parties  or  counsel; 
and  the  court  to  which  such  petition  shall  be  presented  shall  consider 
the  same,  and  if  they  think  fit,  shall  appoint  an  early  day  for  hearing 
parties  or  their  counsel  on  such  case,  and  shall  pronounce  their  opinion 
upon  the  questions  of  law,  as  administered  by  them,  which  are  submitted 
to  them  by  the  foreign  court;  and  in  order  to  their  pronouncing  such 
opinion,  they  shall  be  entitled  to  take  such  further  procedure  thereupon 
as  to  them  shall  seem  proper,  and  upon  such  opinion  being  pronounced, 
a  copy  thereof,  certified  by  an  officer  of  such  court,  shall  be  given  to  each 
of  the  parties  to  the  action  by  whom  the  same  shall  be  required."  24  & 
25  Viet.,  c.  11 .  See  Law  Magazine  and  Review,  London,  May,  1882,  and 
8  Southern  Law  Review,  153. 

z  Regina  v.  Dent,  1  Car.  &  K.  (47  E.  C.  L.)  DC. 


EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW.  137 

proved,  and  cannot  be  regarded  as  the  law.  In  the  /Sussex 
Peerage  Case,  in  the  House  of  Lords,  the  Lord  Chancellor, 
in  speaking  of  this  case,  said  ;  "I  ought  to  say  at  once  that 
it  is  the  universal  opinion  both  of  the  Judges  and  the  Lords 
that  the  case  is  not  law."1 

§  100.  Knowledge  of  the  Foreign  Law  must  have  been 
Acquired  where. — It  has  been  held  in  several  cases,  that 
where  the  knowledge  of  a  witness  produced  as  an  expert  in 
foreign  law,  has  not  been  acquired  in  the  foreign  country, 
such  person  is  not  to  be  regarded  as  competent,  and  his 
testimony  cannot  be  received.  Thus,  it  has  been  held  in 
England,  that  a  witness  was  incompetent  to  testify,  who 
stated  that  he  was  a  jurisconsult,  and  adviser  to  the  Prussian 
Consul  in  England,  and  had  studied  law  in  the  University 
of  Leipsic,  and  that  from  his  studies  there,  he  was  able  to- 
say  that  the  Code  Napoleon  was  the  law  of  Cologne.  The 
court  declared,  that  one  who  never  had  been  in  the  foreign 
state,  and  whose  knowledge  of  the  law  was  not  derived 
there,  was  incompetent  to  testify  as  an  expert  in  the  foreign 
law.2  And  where  one  described  himself  as  "  a  certified 
special  pleader,  and  as  familiar  with  Italian  law,"  he  was 
not  allowed  to  testify  that  the  office  of  curator  in  Italy  was 
as  nearly  as  possible  identical  with  that  of  an  administrator 
in  England,  the  ground  for  his  exclusion  being  that  there 
was  nothing  *'  to  show  that  he  had  any  knowledge  of  Italian 
law,  but  from  the  study  of  it  in  this  country,"  (England).3 
So  an  English  barrister  practicing  in  Canadian  Appeals 
before  the  Privy  Council,  has  been  held  incompetent  in 
England,  to  give  evidence  as  an  expert  as  to  the  validity, 
according  to  the  law  of  Canada,  of  a  marriage  solemnized 
in  that  country.4  But  in  this  country,  a  witness  who  showed 
himself  to  be  instructed  in  the  laws,  customs  and  usages  of 
Spain,  and  who  was  a  legal  practitioner  in  the  Island  of 

1 11  Cl.  &  F.  85,  134.     And  sec  Vander  Donckt  v.  Thellnsson,  8  Man. 
G.  &  S.  (65  E.  C.  L.)  812,  where  Regina.  v.  Dent,  supra,  is  distinguished. 

2  Bristow  v.  Sequeville,  5  Excheq.  272. 

3  The  Goods  of  Bonnelli,  1  Prob.  Div.  (L.  R.)  C9. 
<  Cartwright  v.  Cartwright,  2G  W.  R.  684. 


138  EXPERT  TESTIMONY. 

•Cuba,  which  is  governed  by  Spanish  law,  was  held  competent 
to  prove  the  law  of  Spain,  although  he  never  resided  or  prac- 
ticed in  the  latter  country.1 

§  101.  Right  of  Expert  to  Cite  Text  Books,  Decisions, 
Codes,  etc. — Where  a  lawyer  or  expert  in  foreign  law  is 
allowed  to  testify  as  to  the  law,  assuming  it  to  be  a  re- 
sultant of  the  lex  scripla  and  the  lex  non-scripta ,  he  may 
confirm  his  recollection  of  the  law,  or  assist  his  own  knowl- 
edge by  reference  to  text  books,  decisions,  statutes,  codes, 
or  other  legal  documents.  And  if  he  describes  them  as 
truly  stating  the  law,  they  may  be  read,  not  as  evidence  per 
se,  but  as  part  and  parcel  of  his  testimony.2 

§  102.  How  these  Citations  are  to  be  Regarded. — It  is 
said  that  in  the  first  instance,  at  least,  the  judge  can  only 
regard  the  citations  of  the  laws  and  authorities  contained  in 
the  opinions  of  the  experts,  as  connected  with  the  testi- 
mony, and  that  he  cannot  consider  them  as  at  all  important, 
except  with  regard  to  the  degree  of  weight  given  by  the 
testimony.  That  if  he  reads  them,  they  may  appear  to  him 
to  accord  with  the  testimony,  or  to  differ  from  it.  "  Jf,  in 
his  view,  they  accord  with  it,  nothing  is  gained.  If,  in  his 
view,  they  differ  from  it,  he,  being  ignorant  of  the  foreign 
law,  cannot  weigh  his  opinion  against  the  clear  and  imcon- 
tradicted  opinion  of  the  witness,  whose  opinion  ought  to  be 
derived,  not  only  from  the  citation  in  question,  but  from  all 
the  sources  of  his  knowledge  of  the  law  of  which  he  is 
speaking."3  In  the  Duchess  Di  Siora's  case  in  the  House 
of  Lords,  Lord  CHELMSFORD  declares  that  it  seems  contrary 
to  the  nature  of  the  proof  required,  that  the  judge  should 
be  at  liberty  to  search  for  himself  into  the  sources  of 
knowledge  from  which  the  witnesses  have  drawn,  and 
produce  for  himself  the  fact  which  is  required  to  be  proved 
-as  a  part  of  the  case.4  But  where  the  opinions  of  the  ex- 

1  Molina  v.  United  States,  6  Ct.  of  Claims,  260. 

-  2  Taylor  on  Evidence,  §  1423;  Xelson  v.  Bridport,  8  Beavan.  527,  538; 
Sussex  Peerage  Case.  11  Cl.  &  Fin.  114, 117. 

3  .Nelson  v.  Bridport,  8  Beavaw,  527,  541. 

4  10  House  of  Lords  Cases,  640. 


EXPERT  TESTIMONY  IN  THE  SCIENCE  OF  LAW.  139 

perts  are  contradictory,  the  court  is  at  liberty  to  examine 
for  itself,  the  laws  and  authorities  cited  by  the  witnesses  as 
the  basis  or  foundation  for  their  opinions.1  Where  the 
jury  are  the  judges  of  the  law,  they,  of  course,  are  not  at 
liberty  to  enter  upon  any  independent  investigation,  and 
must  of  necessity,  weigh  the  evidence  of  the  experts  when 
it  is  conflicting,  giving  to  it  such  consideration  as  they  deem 
it  deserves.  In  some  cases  it  has  been  held  that  the  foreign 
law  is  a  question  of  fact  for  the  jury,2  but  the  weight  of 
authority  in  this  country  seems  to  be  in  favor  of  the  theory 
that  it  is  a  question  for  the  court,  and  not  for  the  jury.3 
But  a  distinction  has  been  made  between  the  written  and 
unwritten  law  ;  and  it  has  been  held,  that  where  the  law  is 
unwritten,  it  is  a  question  of  fact  for  the  jury,  but  where  a 
statute  or  judicial  decision  is  involved,  the  question  of  con- 
struction and  effect  is  for  the  court.4 

§  103.  Testimony  as  to  Usage  and  Practice  of  Courts  of 
Another  State.  —  Lawyers  are  permitted  to  testify  in  the 
courts  of  another  State,  as  to  the  usage  and  practice  of  the 
courts  in  the  State  in  which  they  practice.5  In  the  case  cited, 
the  depositions  of  lawyers  and  judges  of  Rhode  Island  were 
received  in  the  courts  of  Massachusetts,  to  show  that  the 
service  of  a  writ  of  arrest  in  the  manner  set  forth  in  the 
officer's  return,  was  a  good  and  valid  service  under  the 
practice  and  usage  of  the  courts  of  Rhode  Island,  giving 
the  courts  of  that  State  jurisdiction,  and  that  a  judgment 
concluded  on  such  service  would  be  valid  there.  It  amounted 
to  proof  of  the  unwritten  law.  But  the  rule  allowing 


1  Trimbey  v.  Viguier,  1  Bingham  (N.  s.;,'15S;  Bremer  v.  Freeman,  10 
Moore,  P.  C.  306. 

2De  Sobry  v.  Laistre,  2  II.  &  J.  191;  Ingham  v.  Hart,  11  Ohio,  255; 
Holman  v.  King,  7  Met.  384. 

3  Sichvell  v.  Evans,  1  P.  &  W.  (Penn.)  383;  Ripple  v.  Ripple.  1  Rawle 
(Penn.),  3SG;  Bock  v.  Lauman,  12  Harris  (Penn.).  435;  Inge  v.  Murphy, 
10  Ala.  885;   Hooper  v.  Moore,  5  Jones  Law  (X.  C.)  130;  Newell  v. 
Xewell,  9  Miss.  58. 

4  Ely  v.  James,  123  Mass.  30;  Kline  v.  Baker,  90  Mass.  254.    See  Moore 
v.  Gnyner,  5  Me.  187. 

"•>  Mowry  v.  Chase,  100  Mass.  79. 


140  EXPERT  TESTIMONY. 

experts  to  testify,  does  not  enable  a  party  to  call  lawyers  to 
testify  what  is  the  practice  of  the  profession,  under  a  cer- 
tain statute  of  the  State,  for  the  purpose  of  guiding  the 
judge  in  the  construction  to  be  given  to  it,  the  question 
arising  in  the  courts  of  the  State  which  enacted  the  statute.1 
§  104.  Testimony  as  to  Powers  and  Obligations  of  an 
Attorney  in  his  Relations  to  his  Clients. — It  is  error  to  re- 
ceive the  opinions  of  lawyers  as  to  the  rights  and  duties  of  an 
attorney  as  between  himself  and  his  client.3  In  the  partic- 
ular case,  it  was  held  error  to  receive  the  opinions  of  such 
witnesses  as  to  whether,  in  a  certain  stato  of  facts,  an 
attorney  should,  as  a  matter  of  course  and  of  duty,  have 
moved  for  a  reference,  and  whether  he  had  or  had  not  a 
right,  in  the  discharge  of  his  legal  and  proper  duty,  to  open 
a  default. 

1  Gaylor's  Appeal,  43  Conn.  82. 

2  Classman  v.  Merkel,  3  Bosw.  402,  409. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  141 


CHAPTER  VI. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS. 
SECTION. 

105.  Nautical  Experts. 

106.  Nautical  Experts— The  Subject  Continued. 

107.  Railroad  Experts. 

108.  Railroad  Experts— The  Subject  Continued. 

109.  Experts  in  Insurance. 

110.  Experts  in  Insurance— The  Subject  Continued. 

111.  Gardeners,  Farmers  and  Stock  Raisers. 

1 12.  Millers  and  Millwrights. 

113.  Surveyors  and  Civil  Engineers. 

114.  Surveyors  and  Civil  Engineers — The  Subject  Continued. 

115.  Machinists. 

116.  Mechanics,  Masons  and  Master  Builders. 

117.  Experts  in  Patent.  Trade  Mark  and  Copyright  Cases. 

118.  Painters  and  Photographers. 

119.  Lumbermen. 

120.  Translation  by  Experts  of  Writings  from  a  Foreign  Language. 

121.  Expert  Testimony  as  to  Technical  Terms  and  Unusual  Words. 

122.  Expert  Testimony  as  to  Technical  Terms  and  Unusual  Words— 

The  Subject  Continued. 

123.  Expert  Testimony  as  to  Usage. 

124.  Opinions  of  Experts  in  Miscellaneous  Cases. 

125.  Opinions  of  Experts  in  Miscellaneous  Cases — The  Subject  Con- 

tinued. 

126.  Opinions  of  Experts  in  Miscellaneous  Cases— The  Subject  Con- 

tinued. 


§  105.  Nautical  Experts. — The  opinions  of  persons  en- 
gaged in  the  navigation  of  vessels  and  boats  are  received  on 
questions  pertaining  to  nautical  science.  "Such  men  form 
their  opinions  from  facts  within  their  own  experience,  and 
not  from  theory  or  abstract  reasoning.  They  come,  there- 


142  EXPERT  TESTIMONY. 

fore,  even  more  properly  within  the  definition  of  expert* 
than  men  of  mere  science."1  Their  opinions  have  been 
received  as  to  the  seaworthiness  of  vessels  ; 2  as  to  what 
caused  a  vessel  to  leak ; 3  as  to  the  soundness  of,  a  chain 
cable  ; 4  as  to  the  possibility  of  avoiding  a  collision  by  the 
use  of  proper  care  on  the  part  of  the  officers  and  crew  of 
one  of  the  vessels  ; 5  as  to  whether  a  port  could  have  been 
made  by  skillful  management ; 6  as  to  whether  a  vessel  was 
stranded  through  unskillful  and  careless  management,  or 
inevitable  accident;7  as  to  the  proper  mode  and  time  of 
changing  the  fastening  of  boats  in  a  tow  ; 8  as  to  whether  it 
would  be  safe  or  prudent  for  a  tugboat,  on  any  wide  water, 
to  tug  three  boats  abreast,  with  a  high  wind  ;9  and  also  as 
to  the  practical  effect  produced  on  a  ship  by  cross  seas  and 
heavy  swells,  shifting  winds  and  sudden  squalls.10  Experi- 
enced river  navigators,  who  knew  both  boats,  have  been 
allowed  to  testify  as  to  what  would  be  the  probable  effect 
on  one  boat  of  the  waves  or  swells  of  another  and  very  large 
boat — that  it  would  have  a  tendency  to  open  the  seams  of 
the  outriggers,  and  cause  the  caulking  to  fall  out,  which 
Avould  have  a  tendency  to  let  water  in.11  The  opinions  of 

1  Delaware  etc.  Steam  Towboat  Co.  v.  Starrs,  69  Perm.  St.  36,  41. 

2  Beckwith  v.  Sydebotham,  1  Camp.  117;  Baird  v.  Daly,  68  N.  Y.  548; 
Patchin  v.  Astor  Mutual  Ins.  Co.,  13  N".  Y.  268;  Western  Ins.  Co.  v, 
Tobin,  32  Ohio  St.  77,  94.    The  certificate  of  a  marine  surveyor  and  in- 
spector, made  in  the  course  of  his  business,  is  competent  evidence  of 
seaworthiness  at  that  time,  if  supported  by  his  oath  that  he  examined  the 
vessel,  and  has  no  doubt  that  the  facts  stated  in  it  are  true,  although  he 
has  no  independent  recollection  of  the  facts.    Perkins  v.  Augusta  Ins, 
Co.,  10  Gray,  312. 

3  Parsons  v.  Manuf.  etc.  Ins.  Co.,  16  Gray.  463.    See  too,  Zugasti  v. 
Lamer,  12  Moore,  P.  C.  331,  336. 

*  Reed  v.  Dick,  8  Watts  (Penn.),  479. 

6  Jameson  v.  Drinkald,  12  Moore,  148;  Femvick  v.  Bell,  1  Car.  &  Kir. 
(47  Eng.  C.  L.  311,)  312;  Carpenter  v.  Eastern  Transportation  Co.,  71 
N.  Y.  574. 

6  Dolz  v.  Morris,  17  X.  Y.  Sup.  Ct.  202,  203. 

7  New  England  Glass  Co.  v.  Lovell,  7  Cush.  (Mass.)  319,  322. 

8  Delaware  etc.  Steam  Towboat  Co.  v.  Starrs.  69  Penn.  St.  36,  41, 

9  Transportation  Line  v.  Hope,  95  U.  S.  297. 

10  Walsh  v.  Washington  Marine  Ins.  Co.,  32  X.  Y.  427. 
".Western  Ins.  Co.  v.  Tobin,  32  Ohio  St.  77,  97. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  143 

nautical  experts  hfave  also  been  received  as  to  the  proper 
management  of  a  ship.1  And  experienced  navigators  who 
were  acquainted  with  the  nature  and  extent  of  obstructions 
in  the  waters  navigated,  and  the  dangerous  character  of 
their  navigation,  have  been  held  competent  to  express  an 
opinion  as  to  the  probable  cause  of  the  loss  of  a  vessel.2  In 
cases  of  collision,  where  the  question  is  as  to  the  direction 
from  which  the  blow  appeared  to  have  come,  the  opinions 
of  nautical  experts  have  also  been  received.3  In  the  case 
cited,  the  court  say:  "  It  may  easily  be  perceived  how  an 
experienced  boatman  could  judge  of  the  direction  of  the 
body  in  motion,  that  displaced  a  portion  of  the  plank  and 
timbers  of  the  injured  vessel,  as  a  surgeon  can  tell  from 
what  quarter  a  blow  has  been  aimed  that  inflicts  a  wound 
upon  the  person  ;  but  a  mere  description  of  the  broken  frag- 
ments, in  the  one  case,  or  the  lacerated  integuments  in  the 
other,  will  seldom,  if  ever,  enable  a  jury  to  say  how  the 
disturbing  cause  made  its  approach." 

§  106.  Nautical  Experts  —  The  Subject  Continued. — 
Nautical  experts  may  be  permitted  to  testify  as  to  what  is  a 
full  cargo  for  a  ship  to  carry  with  safety,4  and  to  express  an 
opinion  as  to  the  effect  of  a  deck  load  upon  the  safety  of  a 
vessel.5  They  have  been  allowed  to  state  that  the  opening 
of  the  garboard  seam  in  a  vessel  was  due  to  the  working  of 
the  stem.6  Upon  the  question  of  negligence  in  mooring  a 
vessel,  the  ship's  keeper  has  been  held  competent  to  testify 
as  an  expert,  as  to  the  conditions  of  the  fastenings  of  the- 
vessel  as  to  safety.7  A  shipwright  who  has  examined  a  de- 
cayed vessel  may  give  his  opinion,  founded  on  the  condition 
of  the  timbers  at  the  time  of  his  examination,  whether  a 
person  could  have  removed  a  part  of  the  "thick  streak" 

1  Giiitcrman  v.  Liverpool  etc.  Steamship  Co.,  83  N.  Y.  358. 
51  Western  Ins.  Co.  v.  Tobin,  32  Ohio  St.  77,  92. 

3  Steamboat  v.  Logan,  IS  Ohio.  375.     And  see  Zugas  i  v.  Lamer,  12: 
Moore,  P.  C.  331,33ti.. 

4  Ogden  v.  Parsons,  23  How.  1 67. 

s  Lapham  v.  Atlas  Ins.  Co.  24  Pick.  (Mass.)  1 . 

"  Paddock  v.  Commonwealth  Ins.  Co. ,104  MUSK.  521  r  529- 

7  Moore  v.  Westervelt.  9  Bos.  (N.  Y.)  55U. 


144  EXPERT  TESTIMONY. 

some  months  before,  without  discovering  that  the  timber 
under  it  was  decayed.1  The  opinions  of  nautical  experts 
are  admissible  as  to  the  necessity  of  a  jettison,2  and  upon 
the  question  whether  an  injured  boat  was  worth  repairing.3 
But  it  has  been  held  that  one  experienced  in  raising  sunken 
boats  and  repairing  them,  and  who  was  acquainted  with  the 
boat  in  question,  could  not  express  an  opinion  as  to  what 
would  be  the  expense  of  raising  and  repairing  it ;  that  he 
might  state  the  particulars,  but  the  jury  should  compute 
the  expense,  as  it  was  a  matter  not  lying  peculiarly  within 
the  knowledge  of  experts.4  On  the  other  hand,  one  who 
had  worked  in  a  shipyard,  and  been  the  owner  of  vessels, 
has  been  permitted  to  testify  as  to  the  difference  in  value 
of  a  vessel  as  repaired,  and  what  her  value  would  have  been, 
if  repaired  according  to  contract.5  And  an  expert  in  the 
wrecking  business  has  been  allowed  to  state  whether  a 
sunken  tug,  which  he  had  examined,  could  be  raised  as  a 
whole,  and  to  express  an  opinion  as  to  its  value  when  raised 
in  comparison  with  the  cost  of  raising  it.6  Sailing  rules 
and  regulations,  prescribed  by  law,  of  course,  furnish  the 
paramount  rule  of  decision  upon  questions  of  navigation. 
But  where  in  any  case,  a  disputed  question  of  navigation 
arises,  in  regard  to  which  neither  the  law  nor  the  rules  of 
the  court  regulating  admiralty  practice  have  made  provision, 
then  the  evidence  of  nautical  experts  is  admissible  as  to  the 
general  usage  in  such  cases.7  Experienced  navigators  and 
masters  of  vessels  have  been  permitted  to  express  an  opin- 
ion that,  a  deposit  of  coin  under  the  ballast,  or  under  the 
cargo,  was  unusual,  and  increased  the  hazards  and  risk  of 
loss  to  which  the  coin  was  exposed.8  So  one  who  has  fol- 

1  Cook  v.  Castner,  9  Cash.  (Mass.)  2(56. 
1  Price  v.  Hartshorn,  44  N.  Y.  94. 

3  Steamboat  v.  Logan,  18  Ohio.  375. 

4  Paige  v.  Hazard.  5  Hill  (X.  Y.)  604. 

5  Sikes  v.  Paine.  10  Ired.  (X.  C.)  Law,  282. 

6Blanchard  v.  Xew  Jersey  Steamboat  Co.,  3  X.  Y.  Sup.  Ct.  771. 
7  The  City  of  Washington.  92  U.  S.  31. 

•  Leitch  v.  Atlantic  Mutual  Ins.  Co.,  66  "N".  Y.  100,  106;  s.  c.,  5  Ins.  L. 
J.  775. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.     145 

lowed  the  sea  for  forty  years  has  been  allowed  to  express  an 
opinion  as  to  whether  an  article  was  properly  stowed  on  a 
boat.1  "What  is  a  competent  crew  for  the  voyage;  at 
what  time  such  crews  should  be  on  board ;  what  is  proper 
pilot  ground  ;  what  is  the  course  and  usage  of  trade  in  re- 
lation to  the  master  and  crew  being  on  board,  when  the 
ship  breaks  ground  for  the  voyage ;  are  questions  of  fact 
dependent  on  nautical  testimony."  2 

A  pilot  who  knew  the  place  of  the  disaster,  and  the  pilot 
in  charge  of  the  boat  at  the  time,  have  been  held  competent 
to  testif v  as  to  whether  it  was  proper  to  suffer  the  pilot  to 
pilot  the  boat  at  the  time  and  place  of  the  accident.3  And 
a  mate  of  a  steamboat  who  had  been  engaged  eight  or  ten 
years  in  navigation,  and  who  saw  the  collision  in  question, 
has  been  allowed  to  testify  that  the  sunken  boat  was  not 
carrying  a  proper  light  at  the  time  of  the  accident.4  But 
one  who  is  not  an  expert  is  incompetent  to  express  an  opin- 
ion as  to  the  seaworthiness  of  a  floating  dock.8  Where  it 
was  claimed  that  the  length  of  the  shaft  caused  a  boat  to 
settle  by  the  stern,  and  the  journals  to  heat  and  bind,  it 
was  held  that  an  expert  could  be  asked  whether  the  boat 
settled  more  than  it  ought  to,  or  than  was  usual.6  In  the 
same  case  it  was  held  that  an  expert  could  not  be  allowed 
to  express  an  opinion  as  to  the  course  which  the  owner  of  a 
steamer  ought,  as  a  prudent  man,  to  take  as  to  the  laying 
up  for  examination  and  repairs  on  discovering  defects  in 
the  engine. 

§  107.  Railroad  Experts. —  The  running  and  manage- 
ment of  railroad  locomotives  and  trains  is  said  to  be  so  far 
an  art,  outside  of  the  experience  and  knowledge  of  ordinary 
jurors,  as  to  render  the  opinions  of  persons  skilled  therein 
admissible,  such  opinions  being  in  the  nature  of  expert 

1  Price  v.  Powell,  3  N.  Y.  322. 

2  McLanahan  v.  Universal  Ins.  Co.,  1  Peters,  170, 183,  per  Mr.  Justice 
Story. 

3  Hill  v.  Sturgeon,  28  Mo.  323. 

4  Weaver  v.  Alabama,  etc.  Co.,  35  Ala.  176. 

5  Miircy  v.  Sun  Ins.  Co.,  11  La.  Ann.  748. 

6  Clark  v.  Detroit  Locomotive  Works,  32  Mich.  348. 

(10) 


146  EXPERT  TESTIMONY. 

testimony.1  Such  witnesses  have  been  permitted  to  tes- 
tify within  what  distance  such  a  train  as  that  in  question 
could  be  stopped  with  ordinary  brakes,  on  an  ascending 
grade,  running  at  such  a  rate  that  a  man  could  run  faster 
than  the  train  was  going.2  And  it  has  been  held  that  a  per- 
son not  connected  with  the  management  of  a  train  of  cars, 
but  who  had  been  for  a  long  time  in  positions  enabling  him 
to  observe  the  effect  of  checking  a  train,  is  competent  to 
express  an  opinion  as  to  how  fast  a  train  should  have  been 
moving  at  a  certain  point  to  be  stopped  at  the  usual  place.3 
A  locomotive  engineer  can  testify  as  to  the  speed  that  is 
usual  and  considered  safe  in  "  backing"  an  engine  drawing 
a  train  after  dark ;  that  he  can  state  the  effect  of  an  engine 
striking  an  animal,  when  running  backward,  and  that  he 
may  explain  the  structure  of  a  locomotive  tender.4  An  en- 
gineer in  charge  of  a  train  of  cars  has  been  permitted  to 
express  an  opinion  as  to  the  possibility  of  avoiding  an  injury 
to  animals,  struck  by  the  locomotive,  the  opinion  being 
given  in  view  of  the  distance  between  the  animals  and  the 
train,  when  the  former  came  upon  the  track.5  One  who 
testified  that  he  had  charge  of  a  stationary  steam  engine, 
and  who  did  not  claim  to  be  a  practical  engineer,  or  a  first 
class  locomotive  engineer,  but  who  had  fired  and  handled  a 
locomotive,  and  understood  an  engine,  has  been  held  com- 
petent to  testify  as  an  expert,  as  to  the  effect  of  a, leaky 
throttle  valve  upon  the  handling  and  operation  of  a  locomo- 
tive.6 

§  108.   Railroad    Experts  —  The    Subject  Continued 

A  machinist  connected  many  years  with  railroads  has  been 
held  competent  to  express  an  opinion  as  to  what  threvv  a 
train  of  cars  from  the  track.7  Railroad  conductors  are 
competent  to  testify  as  to  the  means  of  stopping  a  train  of 

1  Bellefontaine,  etc.  R.  R.  Co.  v.  Bailey,  11  Ohio  St.  333,  335. 

2  Mott  v.  Hudson  River  R.  R.  Co.,  8  Bos.  (X.  Y.)  345. 

8  Detroit,  etc.  R.  R.  Co.  v.  Van  Steinburgh,  17  Mich.  99. 
<  Cooper  v.  Central  Railroad  of  Iowa,  44  Iowa,  140. 

5  Bellefontaine,  etc.  R.  R.  Co.  v.  Bailey,  11  Ohio  St.  333. 

6  lirabbitts  v.  Chicago  &  N.  W.  Ry.  Co.,  38  Wis.  289. 

3  beaver  v.  Boston,  etc.  R.  R.  Co.  14  Gray  (Mass.)  46G. 


EXPERT  TESTIMONY  IX  THE  TRVDES  AND  ARTS.  147 

cars.1  Persons  skilled  in  the  running  of  railroad  trains  may 
be  asked  as  experts,  upon  an  assumed  state  of  facts, 
whether  in  the  case  assumed,  the  brakemen  were  in  their 
proper  places,2  The  opinion  of  a  railroad  superintendent, 
upon  a  matter  within  the  scope  of  his  employment,  "  stands 
upon  the  footing  of  an  opinion  of  an  expert."  3  The  road 
master  of  a  railroad,  whose  duty  it  was  to  receive  and  in- 
spect ties,  has  been  allowed  to  testify  as  to  the  quality  of 
certain  railroad  ties.4 

Where  the  question  was  whether  a  rail  was  defective,  or 
whether  it  had  been  maliciously  cut,  a  newspaper  editor, 
who  had  visited  the  scene  of  the  accident  for  the  purpose  of 
reporting  it,  and  had  testified  that  during  a  period  of  twenty 
years  he  had  visited  "  dozens  of  railroad  accidents,"  and 
had  examined  them  for  the  purpose  of  reporting  the  probable 
cause  of  the  accident,  was  asked  to  state  whether  he  had 
arrived  at  any  conclusion  as  to  the  cause  of  the  accident. 
The  court  held  that  it  was  no  error  to  exclude  his  opinion.5 
And  where  the  question  was  whether  a  certain  accident 
would  have  been  avoided  provided  there  had  been  guard 
chains  attached  to  the  cars,  the  opinion  of  a  railroad  con- 
ductor was  rejected,  because,  so  far  as  the  subject  matter 
of  inquiry  was  concerned,  he  "  was  not  an  expert,  and  had 
no  peculiar  knowledge  on  the  subject."  6  So  it  has  been  held 
that  a  witness  of  long  railroad  experience  cannot  be  allowed 
to  testify  whether  the  blowing  of  a  steam-whistle  was,  under 
the  circumstances  of  the  case,  prudent.7  It  has  been  held 
no  error  to  refuse  the  testimony  of  switchmen  to  show  that 
in  their  opinion  it  was  not  necessary  for  another  switchman 
to  have  been  where  he  was  when  he  received  the  injury 
complained  of.  The  opinions  of  the  witnesses,  though  ex- 
perts, were  inadmissible  as  the  subject  matter  of  inquiry  did 

1  Mobile,  etc.  R.  R.  Co.  v.  Blakeley,  59  Ala.  471. 

2  Cincinnati,  etc.  R.  R.  Co.  Smith,  22  Ohio  St.  227. 
?  Mason,  etc.R.  R.  Co.  v.  Johnson,  38  Ga.  409.. 

4  Jeffersonville  R.  R.  Co.  v.  Lanham,  27  Ind.  171. 

5  Hoyt  v.  Long  Island  R.  R.  Co.,  57  X.  Y.  678. 

«  Bixby  v.  Montpelier,  etc.  R.  R.  Co.,  49  Vt.  125. 
7  Hill  v.  Portland  etc.  R.  R.  Co.,  55  Me.  438. 


148  EXPERT  TESTIMONY. 

not  partake  of  the  nature  of  a  science  so  as  to  require  a  course 
of  previous  habit  or  study  to  an  attainment  of  a  knowledge 
of  it.1  Other  instances  have  been  elsewhere  given,  where 
the  testimony  of  railroad  experts  has  been  rejected  for  the 
same  reason.2  It  has  been  held  that  railroad  engineers  or 
constructors  are  not  the  only  persons  competent  to  give  an 
opinion  as  to  how  the  running  off  of  cars  on  the  inside  of  a 
curve,  instead  of  the  outside,  could  be  accounted  for ;  but 
that  prima  facie  the  question  could  be  answered  by  any 
person  acquainted  with  the  elementary  principles  of  mechan- 
ism, and  experts  only  in  that  branch  of  science.3  One  who 
had  been  the  president  of  two  or  three  city  railroads,  and 
had  been  engaged  for  some  years  in  building  such  roads, 
has  been  allowed  to  give  his  opinion  as  to  whether  a  street 
rail  had  been  properly  laid.4 

§  109.  Experts  in  Insurance. —  There  has  been  a  de- 
cided conflict  of  authority,  both  in  this  country  and  in 
England,  on  the  right  of  underwriters,  and  others  skilled  in 
the  business  of  insurance,  to  testify  as  to  the  materiality  of 
concealed  facts  in  applications  for  insurance.  So  marked 
has  been  the  conflict  of  authority  on  this  question  in  Eng- 
land, that  one  of  the  most  eminent  of  the  English  writers 
on  the  law  of  evidence  declares  that  no  satisfactory  answer 
can  be  given  to  it.*  We  believe,  however,  that  the  better 
rule  is  to  consider  the  admissibility  of  such  evidence  as  de- 
pendent on  the  nature  of  the  facts  concealed.  It  is  evident 
that  those  facts  maybe  of  such  a  nature  that  ordinary  jury- 
men would  be  perfectly  competent  to  decide  the  question  of 
their  materiality,  in  which  case  there  would  be  no  justifica- 
tion for  the  admission  of  expert  testimony.  On  the  other 
hand,  the  facts  may  be  so  special  and  technical  in  their  na- 
ture, especially  in  questions  of  marine  insurance,  that  per- 
sons without  previous  experience  in  the  business  of  insur- 

1  Pennsylvania  Co.  v.  Conlan,  101  111.  93. 
*  See  §  8,  p.  14. 

3  Murphy  v.  New  York,  etc.R.  R.  Co.,  66  Barb.  125. 

4  Carpenter  v.  Central  Park  etc.  R.  II.  Co.,  11  Abb.  Pr.  (N.  s.)  416. 
•2  Taylor's  Evid.,  1420. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  149 

ance  would  be  unable,  from  the  very  nature  of  the  case,  to 
arrive  at  any  intelligent  conclusion,  in  which  case  it  seems 
that  there  would  exist  a  necessity  for  the  admission  of  ex- 
pert testimony.1 

As  Mr.  Justice  RANNEY  expressed  it  in  a  case  decided  in 
Ohio  as  long  ago  as  1853:  "  If  the  answer  can  be  given 
from  ordinary  experience  and  knowledge,  the  jury  must  re- 
spond to  it  unaided  ;  if  the  effects  of  such  a  cause  are  only 
known  to  persons  of  skill,  and  are  to  be  determined  only  by 
the  application  of  some  principle  of  science  or  art,  such 
persons  may  give  the  results  of  their  own  investigation  and 
experience  to  the  jury  in  the  way  of  opinions,  the  better  to 
enable  them  to  come  to  a  correct  conclusion."  2 

So  another  distinction  may  be  noted.  It  is  held  in  Mas- 
sachusetts that  the  testimony  of  experts,  skilled  in  the  busi- 
ness of  insurance,  that  it  increased  the  risk  to  allow  a 
building  to  stand  unoccupied,  is  inadmissible,  as  being  a 
fact  within  the  common  experience  and  knowledge  of  men 
in  general,3  but  that  whether  such  a  change  in  the  occupa- 
tion was  material  to  the  risk  may  be  tested  by  the  question 
whether  underwriters  generally  would  charge  a  higher  pre- 
mium.4 "That,"  says  Mr.  Justice  GRAY,  "  being  a  mat- 
ter within  the  peculiar  knowledge  of  persons  versed  in  the 
business  of  insurance,  testimony  of  such  persons  upon  that 
point  is  admissible."  5 

And  when  the  testimony  of  underwriters  is  received  as  to 
the  materiality  of  facts,  the  question  is  not  as  to  the  effect 
which  such  facts,  if  disclosed,  would  have  had  on  the  particu- 
lar witness,  but  on  underwriters  generally.  "I  do  not  allow 
you  to  ask  the  witness  what  he  himself,  as  an  underwriter, 
would  have  done  ;  but  whether,  from  his  knowledge  of  the 
business,  he  is  able  to  state  that  the  facts  in  question  would 
or  would  not  have  an  influence  with  underwriters  generally 

1  See  5  Am.  Law  Review,  237;  1  Arnold's  Ins.  573;  2  Diier's  Ins.  780, 
n;  1  Smith's  Lead.  Cas.  490,  n;  Hill  v.  Lafayette  Iiis.  Co.,  2  Mich.  476. 

2  Hartford  Protection  Co.  v.  Harmer,  2  Ohio  St.  452,  457. 

3  Mulry  v.  Mohawk  Valley  Ins.  Co.,  5  Gray  (Mass.),  545. 

4  Merriam  v.  Middlesex  Ins.  Co.,  21  Pick.  (Mass.)  162. 
*  Luce  v.  Dorchester  Ins.  Co.,  105  Mass.  297. 


150  EXPERT  TESTIMONY. 

in  determining  the  amount  of  the  premiums.  If  his  knowl- 
edge and  skill  in  this  particular  business  does  enable  him  to 
state  this,  I  think  it  is  legal  evidence.  *  *  *  Here  the 
inquiry  is,  in  substance,  whether  the  market  value  price  of 
insurance  is  affected  by  particular  facts.  If  the  witness, 
being  conversant  with  the  business,  has  gained  in  the  course 
of  his  employment  a  knowledge  of  the  practical  effect  of 
these  facts,  or  similar  facts,  upon  premiums ,  he  may  inform 
the  jury  what  it  is."  l 

When  the  question  is  as  to  the  materiality  of  concealed  facts 
other  witnesses  than  those  experienced  in  insurance  may  be 
competent.  For  instance,  in  the  case  of  life  insurance,  if 
the  fact  concealed  were  some  bodily  infirmity,  it  would  cer- 
tainly be  competent  to  receive  the  testimony  of  medical  ex- 
perts on  the  question  whether  such  infirmity  was  calculated 
to  shorten  the  life  of  the  insured.  Or  in  the  case  of  marine 
insurance  it  would  be  proper  to  receive  the  testimony  of  ex- 
perienced mariners  or  ship  carpenters  on  the  question 
whether  the  defect  was  such  as  to  endanger  the  safety  of 
the  ship.2  And  it  has  been  laid  down  that  insurance  agents 
cannot  be  called  as  experts  to  prove  what  in  their  opinion 
would  or  would  not  be  an  increase  of  risk  in  a  building, 
merely  because  they  are  insurance  agents,  unless  it  appears 
that  in  the  course  of  their  business  they  have  acquired 
special  knowledge  upon  the  subject.3 

§  110.  Experts  in  Insurance — The  Subject  Continued. 
— We  have  already  stated  that  there  is  a  conflict  of  authority 
as  to  the  right  to  receive  the  testimony  of  experts  in  insur- 
ance, as  to  the  materiality  of  concealed  facts.  However 
doubtful  the  question  may  be  in  England,  we  think  the  weight 
of  authority  is  in  favor  of  the  reception  of  such  evidence  in 
this  country,  at  least,  in  those  cases  in  which  the  facts  are 

aHawes  v.  N.  E.  Ins.  Co.,  2  Curtis  C.  C.  229.  And  see  Berthon  v. 
Loughman,  2  Starkie,  258,  per  Holroyd,  J. ;  Hartman  v.  Keystone  Ins. 
Co.,  21Penn.  St.  466. 

2  Hartford  Protection  Co.  v.  Harmer,  2  Ohio  St.  452,457;  Leitch  v.  At- 
lantic Mutual  Ins.  Co.,  66  N.  Y.,  100. 

8  Schmidt  v.  Peoria,  etc.  Ins.  Co.,  41  111.  296;  s.  c..  5  Benn.  Fire  Ins. 
Cases,  90. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  151 

so  technical  and  special,  as  not  to  lie  within  the  common 
observation  of  men  in  general.  We  can  do  no  more  than 
to  refer  below  to  the  cases  in  which  the  testimony  of  ex- 
perts in  insurance  has  been  held  inadmissible,1  and  those  in 
which  there  has  been  a  contrary  ruling.2  We  may  observe,, 
however,  that  while  in  Massachusetts3  and  in  Maine4  experts 
are  not  allowed  to  testify  directly  to  the  fact,  whether  an 
unoccupied  building  is  a  more  hazardous  risk  than  one  occu- 
pied, yet  such  testimony  is  received  in  New  York5  and 
Missouri.6  Underwriters  have  been  allowed  to  testify  in 
New  York,  that  the  occupation  of  premises  for  certain  pur- 
poses increased  the  risk,7  and  as  to  whether  a  livery  stable 
is  more  exposed  to  conflagration,  and  a  more  hazardous- 
risk,  than  a  tavern  barn.8  So  in  Massachusetts,  evidence- 
has  been  received  as  to  whether  the  existence  of  a  partition 
in  a  story  of  a  building,  increased  the  risk.9  In  New 

1  Carter  v.  Boehm,  2  Burr.  1905;  Durrell  v.  Bederly,  Holt,  X.  P.  Cases', 
283;   Campbell  v.  Rickards,  5  Barn.  &  Ad.  840;  Milwaukee  etc.  R.  R. 
Co.  v.  Kellogg,  94  U.  S.  469 ;  Hartford  Protection  Ins.  Co.  v.  Harmer,  2 
Ohio  St.  452;  Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend.  72;  Hill  v.  Lafayette 
Ins.  Co.,  2  Mich.  47G;  s.  c.,  3  Benn.  Fire  Ins.  Cas.  325;  Summers  v.  U. 
S.  Ins.  Co.,  13  La.  Ann.  504;  s.  c.,  1  Bigelow  Ins.  Cas.  131. 

2  Seaman  v.  Fonerau,  2  Strange,  1183;  Chaurand  v.  Angerstein,  Peake 
X.  P.  C.  61;  Hay  wood  v.  Rodgers,  4  East.  590;   Littledale  v.  Dixon,  I 
Bos.  &  Pul.  151 ;  Rickards  v.  Murdock,  10  B.  &  C.  527;  Elton  v.  Larkins, 
5  C.  &  P.  385;  Berthon  v.  Loughman,  2  Starkie,  258;  Quinn  v.  National 
etc.  Ins.  Co.,  1  Jones  &  Carey  (Ir.)  316;   s.  c.,  1  Benn.  Fire  Ins.  Cas. 
689;  Hawes  v.  X.  E.  Ins.  Co.,  2  Curtis,  C.  C.  229;   Moses  v.  Delaware 
Ins.  Co.,  1  Wash.  C.  C.  385;  Marshall  v.  Union  Ins.  Co.,  2  Wash.  C.  C. 
357;  Luce  v.  Dorchester  Ins.  Co.,  105  Mass.  297;   Daniels  v.  Hudson 
River  Fire  Ins.  Co.,  12Cush.  (Mass.)  416;  Kern  v.  South  St.  Louis  Mutual 
Ins.  Co.,  40  Mo.  19 ;  Cornish  v.  Farm  Buildings  Fire  Ins.  Co.,  74  X.  Y.  295  ; 
Hobby  v.  Dana,  17  Barb.  (X.  Y.)  Ill ;  s.  c.,  3  Benn.  Fire  Ins.  Cas.  581 ; 
M'Lanahan  v.  Universal  Ins.  Co.,  1  Peters,  170,  187;  Hartman  v.  Key- 
stone Ins.  Co.,  21  Penn.  St.  466.  , 

3  Mulry  v.  Mohawk  Valley  Ins.  Co.,  5  Gray,  545. 

*  Cannell  v.  Phoenix  Ins.  Co.,  59  Me.  582;  Joyce  v.  Maine  Ins.  Co.,  45 
Me.  168;  State  v.  Watson,  65  Me.  74,  77;  Thayer  v.  Providence  Ins.  Co., 
70  Me.  539. 

s  See  Cornish  v.  Farm  Buildings  Ins.  Co.,  74  X.  Y.  295. 

6  Kern  v.  South  St.  Louis  Mutual  Ins.  Co.,  40  Mo.  19. 

7  Appleby  v.  Astor  Fire  Ins.  Co.,  54  X.  Y.  253. 

8  Hobby  v.  Dana,  17  Barb.  111. 

9  Daniels  Y.  Hudson  River  Fire  Ins.  Co.,  12  Cush.  416. 


152  EXPERT  TESTIMONY. 

Jersey,  it  has  been  held  that  a  witness  who  was  an  experi- 
enced and  practical  fireman,  could  testify,  whether  in  his 
opinion,  the  risk  from  fire  was  increased  by  certain  altera- 
tions in  a  building.1  In  Pennsylvania,  an  insurance  com- 
pany's clerk  has  been  allowed  to  testify  that  a  risk  would 
not  be  taken  at  any  premium,  on  the  life  of  one  known  to 
be  engaged  in  a  certain  occupation. '2  In  the  case  last  cited, 
Mr.  Chief  Justice  BLACK  said :  "  But  though  the  cases  con- 
flict seriously,  I  think  none  of  them  go  so  far  as  to  say  that 
one  who  knows  the  practice,  not  only  of  the  particular  office, 
but  of  insurance  offices  generally,  may  not  give  his  opinion 
of  the  influence  which  a  given  fact  would  have  had  as  an 
element  in  the  contract.  Certainly  this  is  the  opinion  sup- 
ported by  the  strongest  authority  and  the  best  reasons." 
But  in  New  York  it  has  been  held  improper  to  prove  by 
experts,  that  a  person  who  was  in  the  habitual  use  of  intoxi- 
cating liquors,  would  not  be  considered  an  insurable  subject.3 
It  has  been  held  in  the  Supreme  Court  of  the  United  States, 
that  experts  in  fire  insurance,  accustomed  to  estimating  and 
calculating  the  hazard  and  exposures  to  fire  from  one  build- 
ing to  another,  could  not  testify  that,  owing  to  the  distance 
between  an  elevator  and  a  mill,  and  the  distance  between 
an  elevator  and  some  lumber  piles,  the  elevator  would  not 
be  considered  as  an  exposure  to  the  mill,  and  would  not  be 
considered  in  fixing  a  rate  thereon,  or  in  measuring  the 
hazard  of  the  mill  or  lumber.4  In  New  York,  it  has  been 
held  that  a  medical  examiner  of  an  insurance  company  could 
not  be  asked  as  to  what  effect  certain  assumed  facts  would 
have  had  upon  his  answer  to  the  propriety  of  taking  the 
risk,  if  he  had  been  advised  of  them.5  And  in  a  recent  case 
in  Indiana,  it  was  held  that  insurance  agents,  being  experts 
in  the  business  of  insurance,  could  be  asked  as  to  what 

1  Schenck  v.  Mercer  Co.  Mutual  Ins.  Co.,  24  N".  J.  Law,  451 ;  s.c.,  3 
Benn.  Fire  Ins.  Gas.  714. 

2  Hartman  v.  Keystone  Ins.  Co.,  21  Penn.  St.  466. 

3  Kawls  v.  Am.  Mut.  Life  Ins.  Co.,  27  N.  Y.  282. 

4  Milwaukee  etc.  K.  R.  Co.  v.  Kellogg,  94  U.  S.  469.    And  see  State  v. 
Watson,  65  Me.  74. 

6  Higbie  v.  Guardian  Mutual  Life  las.  Co.,  53  N.  Y.  603. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  153 

would  be  a  reasonable  time  for  an  insurance  agent  to  hold 
an  agency  for  which  he  paid  a  consideration,  no  time  having 
been  fixed  at  the  date  of  the  appointment.1 

§  111.  Gardeners,  Farmers  and  Stock  Raisers. — A  wit- 
ness who  had  used  guano  on  all  kinds  of  garden  and  field 
plants  and  crops,  and  who  had  closely  and  critically  watched 
its  effects,  has  been  held  competent  to  testify  as  to  the 
proper  method  of  using  such  fertilizers,  and  as  to  what 
would  prevent  them  from  acting  beneficially.2  A  gardener 
and  a  farmer,  who  had  attended  to  and  practiced  the  drain- 
ing of  lands  for  the  purpose  of  making  them  productive, 
have  been  held  competent  to  testify  to  their  opinion  as  ex- 
perts, whether  a  certain  piece  of  laud,  examined  by  and 
known  to  them,  required  draining  to  put  it  in  fit  condition  for 
cropping.3  The  opinion  of  a  gardener  has  been  received  as 
to  the  damage  done  to  a  garden  and  nursery  by  the  smoke 
from  a  brick  kiln.4  The  opinion  of  a  farmer  that  a  wagon 
loaded  with  hay  in  a  certain  manner  was  not  safe  to  ride 
upon  over  ordinary  roads,  has  been  held  inadmissible.  The 
jury  were  competent  to  determine  the  question  from  the 
facts  stated.6  But  the  opinions  of  farmers  have  been  re- 
ceived as  to  how  many  bushels  of  corn  there  would  have 
been  on  certain  laud  on  which  cattle  had  trespassed,  had 
it  not  been  for  such  trespass.6  So  it  has  been  held  that  a 
farmer  could  be  asked,  "  taking  that  hay  as  it  stood  then, 
what  would  it  yield  to  the  acre?  "  "  A  person,"  said  the 
court,  "  conversant  with  the  growth  of  grass,  and  accus- 
tomed to  compare  its  appearance  in  different  stages  of  such 
growth  with  its  ultimate  yield  to  the  acre,  may  well  be  said 
to  have  such  knowledge  of  that  subject  as  to  make  him 
competent  to  testify  how  much,  i»  his  opinion,  a  given  piece 
examined  by  him,  will  yield  per  acre.  *  *  *  The  principle 

1  Niagara  Ins.  Co.  v.  Greene,  77  Ind.  595. 

2  Young  v.  O'Neal,  57  Ala.  566. 
8  Buffiun  v.  Harris,  5  R.  I.  250. 

4  Vandine  v.  Burpee,  13  Met.  (Mass.)  288. 

5  Bills  v.  City  of  Ottawa,  35  Iowa,  109. 

6  Sickles  v.  Gould,  51  How.  Pr.   (N.  Y.)  25;  Searaans  v.  Smith,  46 
Barb.  (N.  Y.)  320;  Keith  v.  Tilford,  12  Neb.  271,  275. 


154  EXPERT  TESTIMONY. 

is  the  same  as  that  on  which  the  opinion  of  an  expert  is  re- 
ceived. The  farmer,  acquainted  with  the  subject  matter  of 
such  an  inquiry  as  this  under  consideration,  is  an  expert,  and 
unless  the  witness  has  the  peculiar  knowledge  which  consti- 
tutes him  an  expert,  his  opinions  would  be  excluded."  l 
Farmers  and  dairymen  have  been  held  competent  to  express- 
an  opinion  as  'to  the  adulteration  of  milk.2  A  farmer  ex- 
perienced in  clearing  up  land  has  been  allowed  in  New  York 
to  testify  whether  a  fire  was  set  on  land  at  a  proper  time.5 
But  in  Vermont  the  court  has  held  that  the  opinions  of  far- 
mers who  saw  the  tire  set,  and  testified  to  its  position,  and 
to  the  force  and  direction  of  the  wind,  were  inadmissible  on 
the  question  whether  the  day  on  which  the  fire  was  set  was 
a  suitable  and  safe  day.*  It  has  been  held  in  Minnesota 
that  the  opinion  of  a  farmer  experienced  in  clearing  land 
was  admissible,  where  the  question  was  as  to  how  many 
feet  in  width  it  would  be  necessary  to  plow  to  stop  a  fire  on 
stubble  land.5  It  has  been  held  in  Massachusetts  that  the 
opinion  of  a  farmer  was  inadmissible  on  the  question 
whether  there  was  a  liability  that  a  fire  set  under  certain 
circumstances  would  have  spread  to  adjoining  land.6 

One  who  had  experience  as  an  overseer  of  a  plantation,, 
for  some  five  or  six  years,  has  been  held  qualified  as  an  ex- 
pert to  express  an  opinion  that  the  overseer  of  another 
plantation  had  "managed  pretty  well."7  And  one  who 
had  served  as  overseer  of  a  plantation  for  sixteen  months, 
has  been  held  competent,  as  an  expert,  to  testify  as  to 
the  amount  of  food  which  was  sufficient  for  a  plantation 
slave.8 

The  opinions  of  men,  engaged  in  raising  stock,  and  ac- 
customed to  riding  through  the  same  range  in  quest  of 

1  Phillips  v.  Terry,  3  Abb.  N.  Y.  Decis.  607,  609. 

2  Lane  v.  Wilcox,  55  Barb.  (X.  Y.)  615. 

8  Ferguson  v.  Hubbell,  26  Him  (N.  Y.),  250. 
4  Fraser  v.  Tupper,  29  Vt.  409. 
.  *  Kipner  v.  Biebl  (Sup.  Ct.  of  Minn.),  Alb.  L.  J.,  Sept.  3d,  1881. 

6  Higgins  v.  Dewey,  107  Mass.  494. 

7  Spivav.  Stapleton,  38  Ala.  171. 

8  Cheeky.  State,  38  Ala.  227. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  155 

stock,  have  been  received  as  to  the  number  of  stock  of  a 
particular  brand  running  in  the  range.1  And  in  a  recent 
case  in  Texas  it  was  held  that  an  expert  could  testify  as  to- 
the  topography  of  the  country,  the  number  of  cattle  fre- 
quenting it,  and  whether  they  were  wild  or  gentle,  but  that 
he  could  not  testify  as  to  the  length  of  time  which  would  be 
required  to  gather  a  certain  number  of  citttle  within  the 
limits  of  a  given  range.2  The  opinions  of  experienced 
graziers  have  been  received  as  to  the  condition  of  cattle , 
and  as  to  the  causes  which  affect  their  health  and  weight.3 
Persons  experienced  in  weighing  cattle  are  permitted  to  ex- 
press an  opinion  as  to  the  weight  of  cattle.4  A  stock  raiser 
has  been  allowed  to  testify  as  to  the  damage  done  to  cattle 
by  falling  through  a  wharf.5  And  a  shepherd  will  be  per- 
mitted to  give  an  opinion  as  to  the  age  of  a  sheep,  judging 
from  its  teeth,6  and  so  in  respect  to  the  age  of  a  horse,  or 
other  animal,  experienced  persons  will  be  permitted  to  ex- 
press an  opinion  as  to  his  age,  from  an  examination  of  his 
mouth  and  the  observation  of  other  signs.7 

§  112.  Millers  and  Millwrights. —  Persons  who  have  for 
many  years  been  engaged  in  building  and  carrying  on  mills 
are  qualified  as  experts,  and  entitled  to  give  an  opinion 
touching  matters  connected  with  their  experience.8  The 
opinions  of  millers  and  millwrights  have  been  received  as  to 
the  quantity  of  grain  a  certain  mill  was  capable  of  grinding, 
as  to  the  value  of  the  water  for  milling  purposes,  and  as 
to  the  accuracy  of  the  method  of  weighing  and  measuring 
adopted  in  the  mill.9  A  practical  and  professional  mill- 
wright, who  had  taken  the  levels  of  the  water  and  the 


1  Albright  v.  Corley,  40  Texas,  105. 

2  Tyler  v.  State,  11  Texas  Ct.  of  App.  388. 

3  Baltimore,  etc.  R.  R.  Co.  v.  Thompson,  10  Md.  76. 

«  McCormick  v.  Hamilton,  23  Gratt.  (Va.)  561 ;  Carpenter  v.  Wait,  11 
Gush.  (Mass.)  257. 
5  Polk  v.  Coffin,  9  Gal.  56. 
6Clague  v.  Hodgson,  16  Minn.  329. 

7  See  Moreland  v.  Mitchell  County,  40  Iowa,  401. 

8  Hammond  v.  Woodman,  41  Me.  177. 

9  Read  v.  Barker,  30  X.  J.  Law,  378;  s.  c.,  32  ib.  477. 


156  EXPERT  TESTIMONY. 

water-wheel,  has  been  permitted  to  testify  that  if  the  mill 
dam  was  a  foot  lower  than  it  was,  it  would  be  impossible 
for  the  mill  to  grind  in  a  proper  manner.1  Upon  an  issue 
as  to  the  fitness  of  a  shoal  for  a  mill  site,  the  opinions  of 
millwrights  have  been  received.2  But  it  has  been  held 
that  a  witness  may  testify  to  the  existence  of  a  mill  site 
without  being  an  expert.3  Where  the  identity  of  wheat  was 
material,  a  miller  and  grower  of  wheat  who  was  familiar 
with  the  different  varieties,  was  permitted  to  testify  that 
when  his  wheat  was  cut  early  it  had  a  peculiar  smell ;  that 
the  wheat  stolen  had  been  cut  early  ;  that  the  grain  found 
in  the  possession  of  the  defendant  had  the  same  odor  as 
that  in  the  hogshead  from  which  the  grain  had  been  stolen  ; 
and  therefore  that  his  opinion  was  that  the  wheat  alleged  to 
have  been  stolen  was  pirt  of  the  wheat  originally  in  his  pos- 
session.4 But  where  the  question  related  to  the  freezing  up 
of  a  mill,  the  court  excluded  the  opinion  of  a  millwright 
and  a  tender  of  mills,  who  had  an  experience  of  fourteen 
years,  that  a  mill  dam  on  one  side  of  the  river  being  some 
twenty  rods  further  up  the  stream  than  the  dam  upon  the 
other  side,  would  "  make  it  bad  as  regards  anchor  ice," 
and  "  that  the  dams  being  situated  as  they  are,  the  anchor 
ice  would  naturally  fall  into  the  dead  or  still  water."  The 
court  thought  that  it  did  not  appear  that  his  calling  gave 
him  means  not  ordinarily  possessed  by  other  persons  of 
forming  the  opinion  expressed.5  Where  the  question  was  as 
to  the  skillfulness  of  work  done  on  a  mill,  it  was  held  that 
the  opinion  of  a  millwright  was  admissible,  but  not  that  of 
a  miller.6  And  in  an  action  for  the  rent  of  a  mill,  under  a 
lease  which  provided  that  the  lessor  should  put  the  mill  in 
good  running  order,  it  was  held  competent  to  inquire  of  a 
millwright  whether  certain  additions  and  repairs  were  neces- 

1  Detweiler  v.  Groff,  10  Penn.  St.  376. 

2  Haas  v.  Choussard,  17  Texas,  592. 

3  Claggett  v.  Easterday,  42  Md.  617. 
*  Wa.ker  v.  State,  58  Ala.  393. 

5  Woods  v.  Allen,  18  1ST.  H.  28. 
«  Walker  v.  Fields,  28  Ga.  237. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  157 

sary  to  put  the  mill  in  such  condition.1  One  who  for  a 
number  of  years  had  been  the  owner  of  mills  has  been  per- 
mitted to  give  his  opinion  as  to  the  capacity  of  a  person  as  a 
millwright.2 

§  113.  Surveyors  and  Civil  Engineers. —  A  surveyor, 
who  is  familiar  with  the  peculiar  marks  used  by  the  govern- 
ment surveyors  in  their  public  surveys,  may  give  his  opin- 
ion as  an  expert  whether  a  particular  line  was  marked  by 
them  .3  The  opinion  of  a  practical  surveyor  has  been  re- 
ceived as  to  whether  certain  piles  of  stones,  and  marks  on 
trees  were  monuments  of  boundary.4  And  in  a  contest  as 
to  the  true  location  of  lines  between  adjacent  lot  owners,  a 
practical  surveyor,  who  has  made  an  actual  survey  and  plat 
of  the  lots,  has  been  allowed  to  testify  as  to  the  correctness 
of  the  plat,  and  to  state  the  result  of  his  survey  as  to  the 
location  of  the  lines,  and  of  the  buildings  and  fences  on  the 
lots  with  reference  to  such  lines.8  Upon  a  question  as  to 
the  boundary  line  between  two  counties,  which  had  never 
been  officially  located,6  it  has  been  held  that  while  the 
opinion  of  a  surveyor  was  competent  evidence  to  show  that 
certain  marks  on  a  tree,  claimed  as  a  corner,  were  corner  or 
line  marks,  yet  it  could  not  be  received  for  the  purpose  of 
showing  that  the  tree  was  the  corner  of  a  particular  grant.7 
While  in  an  early  case  it  was  held  that  the  opinion  of  a  sur- 
veyor was  admissible  as  to  a  mistake  in  a  survey,8  and 
where  he  would  locate  a  warrant  similar  to  that  under 
which  a  person  held,9  yet  the  rule  is  that  the  opinion  of  a 
surveyor  is  not  evidence  as  to  the  construction  to  be  given 
to  a  survey ; 10  that  he  cannot  be  permitted  to  give  his 

1  Taylor  v.  The  French  Lumbering  Co.,  47  Iowa,  662;  Cooke  v.  Eng- 
land, 27  Mil.  14. 

2  Doster  v.  Brown,  25  Ga.  24. 

8  Brantly  v.  Swift,  24  Ala.  390. 

«  Davis  v.  Mason,  4  Pick.  156;  Knox  v.  Clark,  123  Mass.  216. 

»  Messer  v.  Reginnitter,  32  Iowa,  312. 

6  Kinlcy  v.  Crane,  34  Penn.  St.  146. 

7  Clegg  v.  Fields,  7  Jones  (X.  C.)  Law,  37. 

8  Forbes  v.  Caruthers,  3  Yeates,  527. 

9  Fiirr  v.  Swan,  2  Penn.  St.  245. 

10  Ormsby  v.  Ihinsen,  34  Penn.  St.  462. 


158  EXPERT  TESTIMONY. 

opinion  as  to  what  are  the  controlling  calls  of  a  deed,1  the 
proper  location  of  a  grant.2  The  title  to  property  claimed 
under  a  recorded  plat  cannot  be  unsettled  by  the  testimony 
of  a  surveyor  who  has  scaled  the  plat,  that  the  scale  is  in- 
•correct.3  Nor  is  the  opinion  of  an  examiner  of  titles  ad- 
missible to  fix  the  location  in  case  of  conflicting  and  doubt- 
ful lines.4  "  Experts  cannot  be  called  to  give  their  opinions 
on  a  subject  of  this  character.  Witnesses  are  competent  to 
show  lines  and  measurements,  but  the  construction  of  writ- 
ten instruments  is  for  the  court  alone."  5  It  has  been  held 
that  one  who  had  been  occasionally  employed  as  a  surveyor 
in  laying  out  and  grading,  but  not  in  constructing  highways 
was  not  competent  to  testify  as  an  expert  as  to  the  safety 
•of  a  highway.6 

§  114.  Surveyors  and  Civil  Engineers  —  The  Subject 
Continued. —  The  opinion  of  civil  engineers,  experienced  in 
the  construction  of  bridges,  has  been  received  as  to  the 
strength  of  construction  and  safety  of  a  bridge.7  And  a 
•civil  engineer,  experienced  in  judging  of  the  soundness  of 
timbers  in  bridges,  has  been  allowed  to  express  an  opinion 
.as  to  whether  one  of  the  sleepers  in  a  bridge  had  rotted  re- 
cently, or  whether  the  decay  was  of  some  length  of  time.8 
A  civil  engineer  and  surveyor,  who  had  made  a  survey  and 
•map  of  the  land  in  question  has  been  allowed  to  testify 
'how  much  ground  would  be  overflowed  at  a  given  height  of 
water.9  Such  witnesses  have  also  been  permitted  to  state 
the  rules  for  the  construction  of  cuts  and  embankments.10 
While  in  a  controversy  as  to  what  constituted  an  approach 

1  Whittlesey  v.  Kellogg,  28  Mo.  404. 

2  Schultz  v.  Lindell,  30  Mo.  310;  Blumenthal  v.  Roll.  24  Mo.  113;  Ran- 
dolph v.  Adams,  2  W.  Va.  519. 

3  Twogood  v.  Hoyt,  42  Mich.  609. 

4  Public  Schools  v.  Risley's  Heirs,  40  Mo.  356. 

5  Normentv.  Fastnaght,  1  McArthur,  515. 

*  Lincoln  v.  Inhabitants  of  Barre,  5  Cush.  (Mass.)  590. 

7  Hart  v.  Hudson  River  Bridge  Co.,  84  N.  Y.  56,  60. 

8  City  of  Indianapolis  v.  Scott,  72  Ind.  196,  203. 

9  Phillips  v.  Terry,  3  Abb.  N.  Y.  Decis.  607. 

10  Central  R.  R.  Co.  v.  Mitchell,  63  Ga.  173;  s.  c.,  1  Am.  &  Eiig.  R.  R. 
'Cases,  145. 


EXPERT  TESTIMONY  IX  THE  TRADES  AND  ARTS.     159 

to  a  railroad  bridge,  where  the  land  adjoining  the  river 
bank  was  low  and  often  overflowed,  and  the  track  was,  in 
consequence,  elevated  and  rip-rapped,  and  as  to  whether 
such  rip-raps  and  dikes  constituted  such  an  approach,  the 
•opinions  of  experienced  engineers  have  been  admissible.1 
So  engineers  have  been  permitted  to  testify,  judging  from 
the  situation  of  the  banks,  the  course  of  the  winds  and 
tides,  and  the  shifting  of  the  sand,  that  a  certain  bank  was 
not  the  occasion  of  a  harbor's  choking  and  filling  up  by 
stopping  the  back  water.2  And  engineers  who  had  taken 
the  comparative  levels  of  a  fountain  of  water,  and  of  cer- 
tain agricultural  drains  in  the  same  lot,  and  who  had  exam- 
ined the  intervening  subsoil, .have  been  allowed  to  express 
iin  opinion  that  the  drains  did  not  lessen  the  quantity  of 
water  in  the  fountain.3  An  engineer  and  landscape  gar- 
dener has  been  permitted  to  express  an  opinion  as  to  what 
certain  laud  was  suitable  for.4  The  opinion  of  an  expert 
has  been  held  admissible  as  to  the  liability  of  a  city  to  inun- 
dation, as  well  as  to  the  injury  to  a  harbor  by  the  removal 
of  the  sand  along  the  shore.5  But  a  civil  engineer  is  not 
necessarily  an  expert  as  to  the  construction  of  a  highway.6 
It  is  well  known  that  the  declarations  of  persons,  since  de- 
ceased, are  received  in  evidence  as  to  the  boundaries  of 
lands,  where  from  their  situation  they  had  the  means  of 
knowing  where  the  boundaries  were.  In  a  case  in  New 
Hampshire  it  was  sought  to  extend  the  principle  to  the 
declarations  made  by  a  surveyor  since  deceased.  But  the 
court  held  that  the  principles  on  which  such  evidence  was 
admitted  would  not  comprehend  the  declarations  of  a  de- 
ceased expert.  It  was  not  necessary  that  such  declarations 
should  be  received,  inasmuch  as  other  experts  could  be 

1  Union  Pacific  R.  E.  Co.  v.  Clopper,  U.  S.  Sup.  Ct.,  1880;  s,  c.  2  Am. 
&  Eng.  K.  K.  Cases,  649. 

2  Folkes  v.  Chadd,  3  Douglas  (26  Eng.  C.  L.  63) ,  157.    See  also  Grigsby 
•\.  Clear  Lake  Water  Works  Co.,  40  Cal.  396. 

3  Bnffuni  v.  Harris,  5  li.  I.  250. 

4  Chandler  v.  Jamaica  Pond  Aqueduct,  125  Mass.  544,  551. 

5  Clasou  v.  City  of  Milwaukee,  30  Wis.  316. 

6  Benedict  v.  City  of  Fond  du  Lac,  44  Wis.  495. 


160  EXPERT  TESTIMONY. 

called,  whose  testimony  would  be  equally  valuable.1  The 
opinion  that  the  surveyor  had  expressed  was  that  a  certain 
tree  was  not  an  original  monument,  because  the  marks  on  it 
were  not  old  enough. 

§  115.  Machinists. —  A  machinist  is  competent  to  give 
an  opinion  as  an  expert,  in  relation  to  the  construction  of 
machinery.2  The  evidence  of  such  experts  has  been  received 
to  show  that  a  machine  was  not  constructed  in  a  workman- 
like manner.3  So  where  the  question  involved  related  to 
the  merits  of  various  machines,  as  whether  one  machine 
was  equal  in  all  respects  to  another  machine  of  different 
make,  persons  having  superior  knowledge  and  experience 
with  such  machines  have  been  permitted  to  express  an  opin- 
ion—  as  to  whether  a  certain  cotton  gin  was  equal  in  all  re- 
spects to  the  best  saw  gin  then  in  use.4  And  a  witness  who 
had  knowledge  of  the  mechanism  and  working  of  knitting 
machines,  and  who  was  familiar  with  the  operation  of  a 
needle  called  the  latch  needle,  but  who  had  no  experience  in 
the  use  of  the  spring  needle,  and  did  not  know  of  its  opera- 
tion, has  been  permitted  to  show  the  facility  and  perfection 
of  operation  of  the  latch  needle  to  the  jury,  to  testify  to  its 
merits,  and  to  express  an  opinion  that  its  use  could  not  be 
superseded  by  the  spring  needle,  giving  his  reasons  there- 
for.5 It  is  not  necessary  in  all  cases  that  the  witness  should 
be  a  machinist  by  trade  ;  if  he  has  had  practical  experience 
in  operating  a  particular  machine,  or  machines  of  a  similar 
character,  he  is  competent  to  express  an  opinion  as  to  the 
kind  of  work  such  machine  can  perform.6  Where  the  ques- 
tion was  as  to  the  proper  mode  of  testing  the  strength  of 
leathern  fire  hose,  a  manufacturer  of  steam  gauges,  who  had 
repeatedly  tested  hose,  was  held  competent  to  express  an 
opinion,  and  to  state  what  constituted  "  a  fair  and  satisfac- 

1  Wallace  v.  Goodall,  18  N.  H.  439,  453. 

2  Sheldon  v.  Booth,  50  Iowa,  209. 
8  Curtis  v.  Gano,  26  N.  Y.  426. 

4  Scattergood  v.  Wood,  79  N.  Y.  263. 

5  James  v.  Hodsdea,  47  Vt.  127. 

6  Sheldon  v.  Booth,  50  Iowa,  209. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  161 

tory  test,"  such  as  was  provided  for  by  the  contract.1  And 
where  an  issue  involved  the  question  of  how  much  work  a 
machine  could  do,  a  person  acquainted  with  the  machine 
and  its  construction  was  allowed  to  express  an  opinion.2 
One  employed  in  a  railroad  machine  shop  as  a  master 
mechanic,  has  been  permitted  to  express  an  opinion  that  a 
certain  spark-arrester  was  the  best  known.3  So  machinists 
and  brass  finishers  of  large  experience  have  been  allowed  to 
state,  that  from  common  observation  and  without  close  in- 
spection, it  could  not  be  told  whether  certain  brass  couplings 
were  perfect  or  imperfect,  and  whether  they  were  of  any 
use  for  the  purpose  for  which  they  were  intended.4 

§  116.  Mechanics,  Masons  and  Master  Builders. — A 
mechanic  has  been  permitted  to  testify  as  to  the  injury  done 
to  a  house  by  defects  in  the  construction  of  the  cellar  under 
it.5  So  where  a  contract  for  the  construction  of  a  building 
stipulated  that  it  should  have  a  wood  cornice  with  brackets, 
but  failed  to  specify  whether  the  cornice  should  be  placed 
on  the  wall  above  the  upper  joist  or  below  that  point,  or 
what  width  of  cornice  or  length  of  bracket  there  should  be, 
it  was  held  competent  to  admit  the  testimony  of  house 
builders  and  mechanics  as  to  these  matters,  and  to  show  by 
them,  that  in  order  to  properly  place  a  cornice  of  a  proper 
width  on  the  building  according  to  contract,  it  was  necessary 
that  the  walls  should  have  been  built  up  to  the  point  they 
were  built  to,  and  for  which  the  contractor  and  builder 
claimed  extra  compensation.6  And  in  an  action  for  labor 
and  materials  in  erecting  a  house,  the  testimony  of  master 
builders  who  had  examined  the  building  and  made  an  esti- 
mate of  the  cost,  has  been  held  admissible  for  the  purpose 
of  ascertaining  the  amount  of  the  damages.7  The  testimony 
of  practical  mechanics,  who  show  themselves  fully  acquainted 

1  Chicago  v.  Gr*er,  9  Wallace,  726,  733. 

2  Burns  v.  Welch,  8  Yerger,  (Term.)  117. 

3  Great  Western  R.  R.  Co.  v.  Haworth,  39  HI.  349. 

4  Jupitz  v.  People,  34  111.  516,  521. 

8  Moulton  v.  McOwen,  103  Mass.  587. 

6  Haver  v.  Tenney,  36  Iowa.  80. 

7  Tebbetts  v.  Haskins.  16  Me.  283. 


162  EXPERT  TESTIMONY, 

with  the  custom  as  to  measuring,  have  been  allowed  to 
testify  as  to  the  measurement  of  masonry,1  and  as  to  the 
proper  mode  of  measuring  the  angles  of  an  octagonal  cellar.2 
And  a  practical  brick  mason,  who  had  aided  in  the  construc- 
tion of  the  plaintiff's  wall,  was  allowed  to  express  an 
opinion  as  an  expert,  as  to  whether  the  quantity  of  rain 
which  fell  on  the  premises  within  the  wall  was  sufficient  to 
wash  it  down.3  So  the  opinions  of  masons  have  been  re- 
ceived as  to  the  length  of  time  required  to  dry  the  walls  of 
a  house  so  as  to  make  it  fit  for  habitation.4  But  it  has  been 
held  that  the  effect  of  water  in  disintegrating  the  mortar  of 
a  wall  is  not  a  matter  of  science,  and  that  other  persons  than 
masons,  who  have  had  an  occasion  to  observe  it,  are  com- 
petent to  express  an  opinion  concerning  it.5  The  opinion  of 
one  having  a  long  and  thorough  acquaintance  with  the  con- 
struction of  berths  on  steamboats,  has  been  received  as  to 
whether  the  berths  on  a  certain  steamboat  were  constructed 
in  the  manner  usual  upon  the  best  boats  built  at  the  time  of 
its  construction.6  When  an  application  for  insurance  con- 
tained a  warranty  that  the  buildings  insured  were  brick,  and 
in  an  action  on  the  warranty  it  was  contended  that  the 
buildings  were  partly  brick  and  partly  wood,  it  was  held 
that  an  experienced  builder  might  be  asked  whether  such 
buildings  would  be  properly  denominated  "brick"  build- 
ings.7 Builders  and  contractors  have  been  held  equally  com- 
petent with  architects,  to  .show  that  the  employment  of  an 
architect  to  make  plans  and  designs  for  a  building,  carried 
with  it  an  employment  to  superintend  its  construction.8 

§  117.  Experts  in  Patent,  Trade  Mark  and  Copyright 
Cases.  —  It  has  been  laid  down  that  in  actions  for  the  in- 

1  Shulte  v.  Heunessy,  40  Iowa,  352. 

2  Ford  v.  Tirrell,  9  Gray  (Mass.),  401. 

3  Montgomery  v.  Gilmer.  33  Ala.  116. 

4  Smith  v.  Gngerty,  4  Barb.  (N.  Y.)  619. 
6  Underwood  v.  Waldron,  33  Mich.  232. 

6  Tinney  v,  New  Jersey  Steamboat  Co.,  12  Abb.  Pr.  (N.  s.)  1. 

7  Mead  v.  Northwestern  Ins.  Co.,  3  Selden  (N.  Y.)  530;  s.  c.,3Benuett 
Fire  Ins.  Cas.  483. 

8  Wilson  v.  Bauman,  80  111.  4f  3. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  163 

friugement  of  patent  rights,  the  testimony  of  experts  is 
admissible  for  the  purpose  of  explaining  the  drawings, 
models  and  machines  exhibited,  as  well  as  for  the  purpose 
of  explaining  their  operation,  and  pointing  out  the  resem- 
blance or  difference  in  the  mechanical  devices  involved  in 
their  construction.1  But  the  court  cannot  be  compelled 
to  receive  the  evidence  of  experts  as  to  how  a  patent 
ought  to  be  construed,  and  whether  it  has  been  violated.2 
Neither  will  an  expert  be  allowed  to  testify,  that  from  inves- 
tigations made  by  him  in  scientific  works,  he  has  ascertained 
that  an  invention  patented  long  before,  was  well  known 
prior  to  the  application  for  letters  patent  thereon.3  "  The 
question,"  said  the  court,  "proposed  to  the  defendant,  as 
an  expert,  sought  to  establish  an  historical  fact,  under  the 
guise  of  a  scientific  opinion.  It  was  properly  excluded." 
In  actions  for  the  infringement  of  trade  marks,  it  is  said 
that  the  probability  of  deception  is  generally  shown  by  re- 
semblance, and  by  the  opinions  of  experts.4  And  in  the 
case  of  an  alleged  violation  of  a  copyright,  it.has  been  held 
that  experts  could  testify,  and  state  the  results  of  compar- 
isons made  by  them  of  the  notes  and  citations  of  authorities 
contained  in  the  two  law  books  in  qujpstion,  together  with 
their  opinion  as  to  whether  the  several  notes  and  citations 
were  of  the  same  character.5 

§  118.  Painters  and  Photographers. — The  opinion  of  an 
artist  in  painting  is  competent  evidence  as  to  the  genuine- 
ness of  a  painting.6  An  ambrotypist  and  daguerreotypist  has 
been  held  competent  to  express  an  opinion  as  to  whether 
photographs  were  well  executed.7  And  an  expert  in  photog- 
raphy has  been  allowed  to  testify,  from  what  he  knew  and 

1  Abbott's  Trial  Evicl.  760;  Corning  v.  Burden,  12  How.  252;  Hudson 
v.  Draper,  5  Fisher's  Pat.  Gas.  256,  259;  s.  c.,  4  Clifford,  181 ;  Gaboon  v. 
King,  1  Clifford,  592;  Winans  v.  X.  Y.  &  Erie  R.  R.  Co.,  21  How.  88. 

2  Waterbury  Brass  Co.  v.  X.  Y.  etc.  Co.,  3  Fisher  Pat.  Cas.  43,  54. 
3McMahon  v.  Tyng,  14  Allen,  1G7. 

4  Abbott's  Trial  Evidence,  752. 

5  Lawrence  v.  Dana,  4  Clifford,  1,  72. 
«  Folkes  v.  Chadd,  4  Dongl.  157. 

7  Barnes  v.  Ingalls,  39  Ala.  193. 


164  EXPERT  TESTIMONY. 

saw  of  a  photograph  painter's  work  and  capacity,  how  many 
photographic  pictures  such  person  could  paint  in  the  course 
of  a  month.1  In  the  same  case  it  was  announced,  that 
although  experts  might  be  alone  competent  to  testify  whether 
a  photograph  was  well  executed,  yet  it  required  no  special 
skill  in  or  knowledge  of  the  photographic  art  to  determine 
whether  the  picture  resembled  the  original,  and  any  person 
for  whom  the  picture  was  taken  could  testify  that  it  was  a 
good  likeness. 

§  119.  Lumbermen. —  One  employed  in  getting  out  log& 
has  been  permitted  to  testify  as  an  expert,  whether  a  per- 
son \vith  the  force  of  men  he  had  employed  could  have 
continued  to  deliver  a  certain  amount  of  logs  per  day.2 
One  who  had  experience  in  floating  logs  in  a  certain  stream 
has  been  allowed  to  express  an  opinion  as  to  the  proper 
manner  of  floating  logs  through  a  dam  and  flume.  "The 
running  of  the  logs  in  that  stream,  and  through  that  bulk- 
head, was  not  a  matter  of  common  knowledge,  nor  of  ade- 
quate commoii'judgment  upon  the  facts  shown  by  the  other 
evidence.  The  experience  and  observation  of  the  plaintiff 
gave  him  the  grounds  and  faculty  of  an  opinion  peculiar  to 
himself,  and  not  common  to  men  who  had  no  such  expe- 
rience or  observation.  In  a  substantial  sense  he  may  be 
regarded  as  an  expert  having  peculiar  knowledge  and  skill, 
which  renders  his  opinion  worthy  of  consideration  as  the 
ground  of  judgment  and  opinion  in  others  who  have  not 
such  knowledge  and  skill."  3  The  opinion  of  a  lumber 
dealer  has  been  received  as  to  the  quality  of  certain  lum- 
ber.* And  one  engaged  in  lumbering  has  been  permitted  to 
state  whether  a  raft  was  properly  moored.5 

§  120.  Translation  by  Experts  of  Writings  from  a  For- 
eign Language. —  The  rule  is  that  when  an  instrument  i* 
written  in  a  foreign  language,  one  skilled  in  such  language 

1  Barnes  v.  Ingalls,  supra. 

2  Salvo  v.  Duncan,  49  Wis.  157. 
8  Dean  v.  McLean,  48  Vt.  412. 

4  Moore  v.  Lea's  Admr.  32  Ala.  375, 
6  Hayward  v.  Knapp,  23  Minn.  430. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  165 

is  to  be  called  to  translate  it.1  But  it  is  not  competent  for 
a  witness  called  to  translate  such  a  writing  to  give  any 
opinion  as  to  its  construction,  that  being  a  question  for  the 
court.2 

If  the  court,  however,  should  undertake  to  translate  a 
writing  without  the  aid  of  experts,  and  should  translate  it 
correctly,  it  is  probable  that  a  new  trial  could  not  be  obtained. 
In  one  of  the  cases  we  find  the  following  upon  this  point  : 
*'  Indeed,  if  the  whole  libel  had  been  published  in  a  foreign 
language,  and  the  court  had  assumed  to  translate  and  de- 
fine its  meaning  to  the  jury  without  the  aid  of  experts,  it  is 
difficult  to  see  how  this  error  could  be  made  the  ground  for 
a  new  trial.  It  is  only  error  that  prejudices,  which  justifies 
setting  aside  the  verdict ;  and  if  the  translation  is  in  fact 
correct,  it  is  difficult  to  see  wherein  the  prejudicial  error 
lies."  3 

§  121.  Expert  Testimony  as  to  Technical  Terms  and 
Unusual  Words. —  It  is  laid  down  as  clearly  within  the 
province  of  the  court  to  define  technical  words  to  the  jury.* 
The  courts  take  judicial  notice  of  the  meaning  of  words  and 
idioms  in  the  vernacular  of  the  language.5  And  where  for- 
eign words  have  been  so  far  Anglicized  by  common  use  as  to 
have  become  substantially  a  part  of  our  language,  it  is 
within  the  province  of  the  court  to  define  them  to  the  jury.6 

1  Di  Sora  v.  Phillips,  10  H.  L.  Cas.  624;  Stearine  v.  Hentzman,  17  C.  B. 
(N.s.)  56;  Sheldon  v.  Beuham,  4  Hill,  129:   Geylin  v.  Villeroi,  2  Hous- 
ton (Del.),  311. 

2  A  Belgian  consul  was  called  to  translate  the  following:  "  Les  infor- 
mations sur  Gustavo  Sichel  sont  tellesque  nous  ne  pouvons  lui  livrer  les 
2500  caisses  que  contre  connalsement.    Si  vous  voulez,  nous  vous  enver- 
rons  les  connaiseraents,  et  vous  ne  les  lui  d£  livrerez  que  centre  pay- 
ment."    He  was  asked  to  what  the  article  "les"  referred,  and  said  it 
was  applicable  to  the  "  connaisements.'"    This  was  held  to  be  error. 
Stearine  v.  Hentzman,  supra. 

3  Gibson  v.  Cincinnati  Enquirer  (U.  S.  Gir.  Ct.),  5  Cent.  L.  J.  380. 

4  Thompson's  Charging  the  Jury,  §  18. 
5 1  Grenl.'s  Evidence,  §  5. 

6  Townshend  on  Slander  &  Libel,  160,  note  2;  Homer  v.  Tauutou,  5 
H.  &  X.  661,  667;  Barnett  v.  Allen,  3  H.  &  N.  376;  Hoare  v.  Silverlock, 
12  Ad.  &  El.  (N.  s.)  624;  Gibson  v.  Cincinnati  Enquirer,  5  Cent.  L.  J. 
380  (U.  S.  Circuit  Ct.,  Southern  District  of  Ohio). 


166  EXPERT  TESTIMONY. 

Instances  of  such  words  are  "  habeas  corpus,"  "  bonafide," 
"prima  facie"  "  a  fortiori  "  "  flagrante  delicto  "  The 
general  rule  undoubtedly  is  that  the  meaning  of  an  English 
word,  not  a  technical  terra,  cannot  be  made  known  to  the 
jury  by  an  examination  of  witnesses.  It  has,  therefore, 
been  held  error  in  an  action  for  libel  to  allow  a  physician  to 
testify  as  to  the  meaning  of  the  word  "  malpractice."  x  But 
this  rule  does  not  apply  "  where  a  known  English  word  or 
phrase  has  acquired  a  local  meaning  different  from  its  or- 
dinary acceptation,  nor  where  it  has  acquired  a  peculiar 
meaning  in  a  particular  science,  art  or  trade,  or  among  a 
particular  sect,  and  where  it  seems  to  have  been  used  in  such 
local  or  peculiar  sense."  2  Hence  it  may  be  laid  down  that 
when  a  new  or  unusual  word  is  used  in  a  contract,  or  when 
a  word  is  used  in  a  technical  or  peculiar  sense,  as  applicable 
to  any  trade  or  business,  or  to  any  particular  class  of  peo- 
ple, it  is  proper  to  receive  the  testimony  of  witnesses  having 
special  knowledge  of  such  words  as  to  the  meaning  attached 
to  them.3  The  rule  has  been  well  stated  by  the  Supreme 
Court  of  Massachusetts  in  the  following  language :  "The 
general  rule  of  law  is,  that  the  construction  of  every  written 
instrument  is  matter  of  law,  and,  as  a  necessary  conse- 
quence, that  courts  must,  in  the  first  instance,  judge  of  the 
meaning,  force  and  effect  of  language.  The  meaning  of 
words,  and  the  grammatical  construction  of  the  English 
language,  so  far  as  they  are  established  by  the  rules  and 

1  Rodgers  v.  Kline,  56  Miss.  818.     See,  too,  Haley  v.  State,  G3  Ala.  89 ; 
Campbell  v.  Russell,  9  Iowa,  337. 

2  Rodgers  v.  Kline,  tupra. 

8  Eaton  v.  Smith,  20  Pick.  (Mass.)  156;  Daniels  v.  Hudson  River  Fire 
Ins.  Co.,  12  Cush.  (Mass.)  416,  429;  Collender  v.  Dinsmore,  55  N.  Y. 
200;  Sturm  v.  Williams,  38  N.  Y.  Superior  Ct.  325;  Hearn  v.  New  Eng- 
land Mutual  Ins.  Co.,  3  Clifford  C.  C.  318;  Prather  v.  Ross,  17  Ind.  495; 
Silverthorne  v.  Fowle,  4  Jones  (X.  C.)  Law  362;  James  v.  Bostwick, 
Wright  (Ohio),  142;  Harris  v.  Rathbun,  2  Abbott  (Ct.  of  App.  Decis.)r 
328;  Williams  v.  Poppleton,  3  Oregon,  139;  Pollen  v.  Le  Roy,  10  Bos. 
(N.  Y.)  38;  First  Baptist  Church  v.  Brooklyn  Fire  Ins.  Co.,  28  N.  Y. 
153, 155;  Reynolds  v.  Jourdan,  5  Cal.  108;  Reamer  v.  Nesmith,  34  Cal. 
627;  Callahan  v.  Stanley,  57  Cal.  479;  Evans  v.  Commercial  Ins.  Co  ,  G 
R.I.  47. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.     167 

usages  of  the  language,  are,  prima  facie,  matter  of  law,  to 
be  construed  and  passed  upou  by  the  court.  But  language 
may  be  ambiguous,  and  used  in  different  senses  ;  or  general 
words,  in  particular  trades  and  branches  of  business  —  as 
among  merchants,  for  instance  —  may  be  used  in  a  new, 
peculiar  or  technical  sense ;  and,  therefore,  in  a  few  in- 
stances, evidence  may  be  received,  from  those  who  are  con- 
versant with  such  branches  of  business,  and  such  technical 
or  peculiar  use  of  language  to  explain  or  to  illustrate  it."  J 
In  that  case  the  court  held  that  the  testimony  of  experi- 
enced persons  could  not  be  received  to  show  that  stones  of 
a  considerable  size  were  universally  known  as,  and  called 
gravel. 

§  122.  Expert  Testimony  as  to  Technical  Terms  and 
Unusual  Words  —  The  Subject  Continued. — A  gas  fitter 
has  been  permitted  to  testify  whether  gas  meters  were 
usually  classified  as  gas  fixtures,  in  an  action  for  the  price 
of  gas  meters  alleged  to  have  been  furnished  to  fulfill  a  con- 
tract for  gas  fixtures.2  The  opinion  of  one  engaged  in  the 
oil  business  has  been  received,  to  show  that  in  a  contract 
for  the  sale  of  a  certain  number  of  "  barrels"  of  petroleum 
oil,  the  word  "  barrel''  meant  a  vessel  of  a  certain  capacity, 
and  not  the  statute  measure  of  quantity.3  So  the  opinion 
of  an  expert  has  been  received  to  show  that  the  meaning  of 
the  term  "  horn  chains,"  used  in  a  contract,  meant  chains 
made  of  hoof  and  horn  ;4  and  that  the  term  "  port  risk,"  as 
used  by  underwriters  in  policies  of  marine  insurance,  had  a 
special  signification.5  Where  a  contract  was  for  the  sale  of 
"  one  hundred  and  fifty  casks  of  one  ton  each,  best  madder, 
12^,"  dealers  in  madder  were  allowed  to  testify  that  the 
figures  as  used  in  the  contract,  meant  12^  cents  per  pound.6 
The  opinions  of  stock  brokers  have  been  received  to 

1  Brown  v.  Brown,  10  Met.  573. 

2  Downs  v.  Sprague,  1  Abbott's  Ct.  of  App.  Decis.  (X.  Y.)  550. 

3  Miller  v.  Stevens,  100  Mass.  518. 

4  Sweet  v.  Shumway,  102  Mass.  365. 

*  Nelson  v.   Sun  Mutual  Ins.  Co.,  71  N.  Y.  453. 
«  Dana  v.  Fiedler,  12  N.  Y.  40. 


168  EXPERT  TESTIMONY. 

explain  the  meaning  among  brokers  and  dealers  in  stock 
of  the  words,  "settled  at  the  market  72|." x  And 
the  opinion  of  iron  merchants,  has  been  received  as  to 
what  was  meant  by  "No.  1  Shott's  Scotch  pig  iron."2 
Persons  engaged  in  the  construction  and  operation  of  mills 
and  factories  run  by  water,  and  acquainted  with  the  appli- 
cation of  water  to  machinery,  have  been  permitted  to  testify 
as  to  the  technical  meaning  of  the  term  "raceway."  3  And 
experts  may  be  called  to  decipher  abbreviated  and  elliptical 
entries  in  the  book  of  a  deceased  notary.4 

§  123.  Expert  Testimony  as  to  Usage. — On  a  question 
of  usage  in  a  particular  trade  or  business,  the  opinions  of 
persons  experienced  therein  will  be  received  in  evidence.5 
"  Usage  is  proved,"  says  the  court  in  Massachusetts,  "  by 
witnesses  testifying  of  its  existence  and  uniformity  from 
their  knowledge,  obtained  by  observation  of  what  is  prac- 
tised by  themselves  and  others  in  the  trade  to  which  it  re- 
lates. But  their  conclusions  or  inferences  as  to  its  effect, 
either  upon  the  contract  or  the  legal  title,  or  rights  of 
parties,  are  not  competent  to  show  the  character  or  force  of 
the  usage."6  That  the  opinions  of  experts  in  a  particular 
business  as  to  the  existence  of  a  usage  in  that  particular 
business,  are  inadmissible  when  the  effect  would  be  to  con- 
tradict the  express  terms  of  the  contract,  is  well  settled 
upon  the  authorities.7  Neither  can  such  evidence  be  received 

1  Storey  v.  Salomon,  6  Daly  (N.  Y.)  532. 

8  Pope  v.  Filley,  9  Federal  Keporter,  65,  69. 

8  Wilder  v.  Decou,  26  Minn.  10. 

4  Sheldon  v.  Benham,  4  Hill,  129. 

6  Wilson  v.  Bauman,  80111.  494;  Kershaw  v.  Wright,  115  Mass.  361; 
The  City  of  Washington,  92  U.  S.  31. 

8  Haskins  v.  Warren,  115  Mass.  514,  535.  And  see  Barnes  v.  Ingalls, 
39  Ala.  193. 

7Malcolmson  v.  Morton,  11  Irish  Law  K.  230  (Q.  B.) ;  Peters  v. 
Stavely,  15  L.  T.  (N.  s.)  151;  Reading  v.  Menhara,  1  Moo.  &  R.  234; 
Savings  Bank  v.  Ward,  100  U.  S.  195,  206;  Partridge  v.  Insurance  Co., 
15  Wall.  375;  Thompson  v.  Riggs,  5  Wall.  663,  679;  Snelling  v.  Hall,  107 
Mass.  134;  Brown  v.  Foster,  113  Mass.  136;  Dickinson  v.  Gay,  7  Allen, 
(Mass.)  29,  31;  Randall  v.  Rotch,  12  Pick.  (Mass.)  107;  Barlow  v.  Lam- 
bert, 28  Ala.  704;  Polhemus  v.  Heinman,  50  Cal.  438;  Bank  of  Commerce 
v.  Bissell,  72  N.  Y.  615;  Colleuder  v.  Dinsmorc,  55  N.  Y.  200;  Frith  v. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  169 

when  it  would  result  in  violating  a  positive  requirement  of 
law,  or  some  principle  of  public  policy.1  It  is  not  to  be 
supposed,  however,  that  a  custom  or  usage  cannot  be  shown 
in  any  case,  if  it  is  simply  different  in  its  effect  from  some 
general  principle  of  law.  To  have  this  effect,  it  must  con- 
flict with  some  rule  of  public  policy,  or  be  unjust  and 
oppressive  in  its  character.2 

It  is  held  that  a  witness  is  competent  to  testify  as  to  usage 
whose  only  knowledge  of  it  is  derived  from  his  own  busi- 
ness, if  that  has  been  sufficiently  extensive  and  long  con- 
tinued.8 The  testimony  of  those  engaged  in  a  particular 
business,  that  they  never  heard  of  such  a  usage,  is  admis- 
sible.4 On  the  issue  whether  an  alleged  commercial  usage 
exists,  a  witness  may  be  asked  to  describe  how,  under  the 
usages  in  force,  a  transaction  like  the  one  in  question  would 
be  conducted  by  all  the  parties  thereto,  from  its  inception 
to  its  conclusion.5  It  has  been  held  in  England  that  a 
London  stock  broker  is  a  competent  witness  as  to  the  course 
of  business  of  London  bankers*  And  it  is  to  be  observed 
that  a  person  may  be  competent  to  testify  as  to  the  usage 
which  prevails  in  a  certain  business,  without  himself  being 
engaged  in  that  business.  So  that  when  the  question  was  as 

Barker,  2  Johns.  (N.  Y.)  334;  Corbettv.  Underwood,  83  111.  324;  Wilson 
v.  Bauinan,  80  111.  493;  Dixon  v.  Dunham,  14  111.  324;  Stultz  v.  Locke,  47 
Md.  562,  568;  Bodfish  v.  Fox,  23  Me.  90;  Exchange  Bank  v.  Coleman, 
1  W.  Va.  69;  Randolph  v.  Holden,  44  Iowa,  327;  Envin  v.  Clark,  13 
Mich.  10,  18;  Bedford  v.  Flowers,  7  Humph.  (Tenn.)  242;  Atwater  v. 
Clancy,  107  Mass.  369. 

1  Barlow  v.  Lambert,  28  Ala.  704,  710;  Antomarchi  v.  Russell,  63  Ala. 
356;  Wilson  v.  Bauman,  80  111.  493,  495;   Bissell  v.  Ryan,  23  111.  570; 
Homer  v.  Dorr,  10  Mass.  26;  Reed  v.  Richardson.  98  Mass.  216;  Lockhart 
v.  Dewees,  1  Texas,  535;  Jackson  v.  Beling,  22  La.  Ann.  377;  Barnard 
v.  Kellogg,  10  Wallace,  383 ;  Brown  v.  Jackson.  2  Wash.  C.  C.  24 ;  South- 
western Freight  etc.  Co.  v.  Standard,  44  Mo.  71 ;  Raisin  v.  Clark,  41  Md. 
158;  Minnesota  Central  R.  R.  Co.  v.  Morgan,  52  Barb.  (N.  Y.)  217.  221; 
Inglebright  v.  Hammond,  19  Ohio.  337. 

2  See  Lawson  on  Usages  and  Customs,  Chapter  V,  §§  225,  248. 

3  Hamilton  v.  Nickerson,  13  Allen  (Mass.)  351. 

4  Evansville  etc.  R.  R.  Co.  v.  Young,  28  Ind.  516. 

5  Kirshaw  v.  Wright,  supra. 

6  Adams  v.  Peters.  2  Car.  &  Kir.  (61  E.  C.  L.)  722. 


170  EXPERT  TESTIMONY. 

to  the  custom  of  the  New  York  banks  in  paying  the  checks 
of  dealers,  it  was  held  proper  to  call  as  witnesses  persons 
who  were  not  employed  in  banks.  "Although  not  employed 
in  banking  business,  the  witnesses  were  dealers  with  the 
banks,  and  had  knowledge  of  the  ordinary  course  of  dealing 
with  them.  There  is  no  necessity  for  showing  a  man  to  be 
an  expert  in  banking  in  order  to  prove  a  usage.  He  should 
know  what  the  usage  is,  and  then  he  is  competent  to  testify, 
whether  he  be  a  banker,  or  employed  in  a  bank,  or  a  dealer 
with  banks.  There  is  no  reason  why  a  dealer  should  not 
have  as  much  knowledge  on  such  a  subject  as  a  person  em- 
ployed in  a  bank."  l 

§  124.  Opinions  of  Experts  in  Miscellaneous  Cases. — 
The  opinion  of  an  ethnologist  has  been  received  upon  the 
question  of  race,2  the  opinions  of  persons  having  a  peculiar 
and  special  knowledge  of  iron,  upon  the  question  of  the 
quality  and  strength  of  iron,  the  breaking  of  which  caused 
an  accident ; 3  the  opinion  of  a  paver  as  to  the  number  of 
bricks  laid  in  a  pavement,  ascertained  from  a  computation 
by  the  square  yard  according  to  usage  of  the  craft,  without 
reckoning  them  by  tale  ; 4  the  opinions  of  witnesses  having 
knowledge  of  the  geological  structure  and  formation  of  the 
neighborhood,  as  to  the  existence  of  coal  seams,  and  of  the 
quality  and  quantity  on  the  lands  in  question  ; 5  the  opinions 
of  persons  engaged  in  the  wool  trade,  as  to  the  liability  of 
wool  waste  to  ignite  spontaneously  ; 6  the  opinion  of  a  prac- 
tical miner  as  to  the  safety  of  a  particular  blasting  powder 
which  he  had  used.7  So  one  employed  in  manufacturing- 
explosive  compounds,  and  who  had  made  blasts  in  all  kinds 

1  Griffin  v.  Rice,  1  Hilton  (N.  Y.)  184. 

2  White  v.  Clemens,  39  Ga.  232;  Nave's  Admr.  v.  Williams,  22  Ind. 
368;  State  v.  Jacobs,  6  Jones  (N.  C.)  Law,  284. 

3  Claxtou's  Admr.  v.  Lexington,  etc.  R.  E.  Co.,  13  Bush  (Ky.),  636; 
King  v.  New  York  Central,  etc.  R.  R.  Co.,  72  N.  Y.  607;  Pope  v.  Filley, 
9  Fed.  Reporter,  65,  66. 

4  Mayor,  etc.  v.  O'Neill,  1  Peian.  St.  342. 

5  Stambaughv.  Smith,  23  Ohio  St.  584,  594. 

«  Whitney  v.  Chicago  &  N.  W.  R.  R.  Co.,  27  Wis.  327. 
7  Snowden  v.  Idaho  Quartz  Manuf.  Co.,  55  Cal.  450. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  171 

of  rocks  and  stones,  in  every  kind  of  blasting,  has  been  held 
qualified  "as  a  most  competent  expert,"  to  state  whether 
portions  of  a  rock  could  have  been  thrown  280  feet  from 
the  point  of  discharge,  the  blast  being  exploded  in  the  ex- 
cavation of  a  sewer.1  The  opinions  of  experienced  persons 
have  been  received  as  to  whether  two  pieces  of  wood  were 
parts  of  the  same  stick  of  natural  growth.2  And  it  has  been 
held  that  an  expert  may  be  asked  what  the  condition  of  a 
water  pipe,  as  described  by  another  witness,  indicated  as  to 
the  original  construction  of  the  joint.3  A  well-digger,  who 
from  the  exercise  of  his  busines  in  the  vicinity  has  become 
acquainted  with  the  character  of  the  soil  and  subsoil,  has 
been  allowed  to  testify  to  his  opinion,  whether  a  given  thick- 
ness of  subsoil,  if  undisturbed,  was  impervious  to  water.4 
A  witness  who  had  been  engaged  for  years  in  measuring  and 
selling  water  to  miners,  was  held  sufficiently  qualified  to 
give  his  opinion  as  to  the  effect  which  a  dam  across  a  stream 
would  have  in  raising  the  water  in  the  channel  above.5 
When  the  question  was  as  to  the  cause  of  the  settling  and 
cracking  of  the  surface  of  the  earth,  the  opinions  of  experts 
were  received,  they  having  examined  the  premises,  and 
being  qualified  by  learning,  observation  and  experience  to 
form  an  intelligent  judgment  in  the  matter.6 

§  125.  Opinions  of  Experts  in  Miscellaneous  Cases  — 
The  Subject  Continued. —  The  opinion  of  an  expert  has 
been  received  as  to  the  quantity  of  stone  furnished  for  a 
water  works  reservoir,  where  the  average  amount  could  only 
be  estimated  approximately.7  The  testimony  of  experts 
has  been  received  as  to  whether'it  is  possible  to  examine  all 
the  layers  in  a  case  of  old  tobacco  without  injuring  the 
tobacco,  and  as  to  what  is  the  proper  method  of  examining 
such  a  case  for  the  purpose  of  determining  the  kind  and 

1  Roster  v.  Noonan,  8  Daly  (N.  Y.)  232. 

2  Commonwealth  v.  Choate,  105  Mass.  451. 

3  Hand  v.  Brookline,  12G  Mass.  324. 

4  Buff  urn  v.  Harris,  5  K.  I.  250. 
»  Blood  v.  Light,  31  Cal.  115. 

6  Clark  v.  Willett,  35  Cal.  534,  544. 

7  Eyerman  v.  Sheehan,  52  Mo.  221. 


172  EXPERT  TESTIMONY. 

quality  of  the  tobacco.1  Experts  have  been  allowed  to  tes- 
tify that  a  certain  quality  of  steel  was  not  considered  suit- 
able for  the  manufacture  of  steel  .rails.2  One  who  had 
made  and  sold  railroad  ties  has  been  held  competent  to  tes- 
tify as  to  the  quality  of  certain  ties.3  And  in  general 
skilled  witnesses  are  allowed  to  testify  as  to  the  quality  of 
goods.4  The  testimony  of  a  tailor  has  been  received  as  to 
whether  a  pocket  book  could  have  been  taken  out  through 
a  cut  made  by  a  pickpocket  in  a  coat,  it  appearing  that  the 
coat  had  been  mended  subsequently  to  his  examination  of 
it.5  The  genuineness  of  a  post  mark  may  be  shown  by  the 
testimony  of  a  postmaster,6  and  perhaps  by  the  testimony 
of  any  one  who  has  been  in  the  habit  of  receiving  letters 
with  that  mark.7  An  expert  has  been  permitted  to  express 
an  opinion  as  to  the  contents  of  a  tree  from  the  size  of  its 
stump.8 

Where  books  and  schedules  of  the  assets  and  debts  of  a 
party  are  put  in  evidence,  an  accountant  may  give  the  re- 
sults of  computations  therefrom.9  Witnesses  who  stated 
that  they  were  accustomed  to  handling  and  driving  horses, 
and  knew  their  habits,  have  been  allowed  to  express  an 
opinion  that  certain  obstructions  on  a  bridge  were  of  such  a 
character  as  would  be  likely  to  frighten  horses  of  ordinary 
gentleness.  "The  nature,  habits,  and  peculiarities  of 
horses,"  said  the  court,  "  are  not  known  to  all  men.  Per- 
sons who  are  in  the  habit  of  handling  and  driving  horses, 
from  this  experience,  learn  their  habits,  nature,  etc.,  and 
are,  therefore,  better  able  to  state  the  probable  conduct  of 
a  horse  under  a  given  state  of  circumstances,  in  which  they 
have  in  their  experience  witnessed  their  conduct  under  sinri- 

1  Atwater  v.  Clancy,  107  Mass.  369. 

2  Booth  v.  Cleveland  Mill  Co.,  74  N.  Y.  27. 

8  Jeffersonville  R.  R.  Co.  v.  Lanliam,27  lud.  171. 

4  Myers  v.  Murphy,  60  Ind.  232;  Brown  v.  Leach,  107  Mass.  364. 

5  People  v.  Morrigan,  29  Mich.  5. 
«  Abbey  v.  Lill,  5  Biug.  299,  304, 

*  Woodcock  v.  Houldsworth,  16M.  &  W.  124. 

*  Frantz  v.  Ireland,  66  Barb.  3S6. 

9  Jordan  v.  Osgood,  109  Mass.  457. 


EXPERT  TESTIMONY  IN  THE  TRADES  AND  ARTS.  17& 

lar  circumstances,  than  persons  having  no  experience  what- 
ever with  horses."  l 

§  126.  Opinions  of  Experts  in  Miscellaneous  Case* — 
The  Subject  Continued. — The  opinions  of  persons  accus- 
tomed to  witness  the  agility  and  power  of  certain  fish,  in 
overcoming  obstructions  in  the  ascent  of  rivers,  and  who 
have  acquired  superior  knowledge  upon  that  subject,  have 
been  held  admissible  for  the  purpose  of  showing  that  a 
certain  stream,  in  its  natural  state,  would  or  would  not  be 
ascendible  by  such  fish.  *'  The  witnesses  had  acquired  from 
observation,  superior  knowledge  upon  this  subject.  It 
appears  to  us  to  fall  within  that  class  of  cases  in  which  the 
opinions  of  persons  skilled  in  any  art,  science,  trade  or 
business  are  received."2  A  brick  and  tile  maker,  having 
had  some  years  experience  in  his  trade,  has  been  held  com- 
petent to  give  an  opinion  as  an  expert  on  the  proper  mode 
of  burning  tiles,  and  as  to  what  would  be  the  effect  of 
burning  in  one  way  or  another.3  An  architect  has  been  per- 
mitted to  testify  that  the  work  done  on  a  building  was  per- 
formed in  compliance  with  the  contract.4  One  who  had  been 
engaged  for  over  twenty  years  in  the  manufacture  of  paper, 
has  been  held  competent  to  testify  as  to  what  the  condition  of 
a  paper  mill  and  its  machinery  was  at  a  certain  time.5  The 
opinion  of  a  witness  experienced  m  the  use  of  guns,  has 
been  received  as  to  the  length  of  time  since  the  weapon  was 
discharged.6  And  it  has  been  held  that  witnesses  who  saw 
a  pistol  immediately  after  it  had  been  discharged,  and  who 
were  familiar  with  such  weapons,  could  be  asked  their 
opinion  on  the  question,  whether  the  appearances  indicated 
how  many  barrels  had  been  fired,  and  which  ones.7  A 
witness  accustomed  to  packing  marbles  for  transportation, 
has  been  permitted,  against  objection,  to  state  whether  cer- 

1  Moreland  v.  Mitchell  Couuty,  40  Iowa,  401. 

2  Cottrill  v.  My  rick,  12  Me.  222,  231. 

3  Wiggins  v.  Wallace,  19  Barb.  (N.  Y.)  338. 

4  Tucker  v.  Williams,  2  Hilton  (X.  Y.),  562. 

5  Blodgett  Paper  Co.  v.  Farmer,  41  N.  H.  401. 

6  Monghon  v.  the  State,  57  Ga.  102. 

7  Wynne  v.  State,  5G  Ga.  113. 


174  EXPERT  TESTIMONY. 

tain  marbles  were  properly  packed,  the  court  declaring  that 
such  a  question  was  a  proper  one  for  the  testimony  of  ex- 
perts.1 An  expert  has  been  allowed  to  testify  as  to  the 
usual  manner  in  which  zinc  is  imported.2  A  witness  who  is  an 
expert  in  the  curing  and  care  of  meats,  may  testify  whether 
hams  prepared  in  a  certain  prescribed  way  and  shipped  for 
transportation  to  a  specified  point,  if  properly  stowed  and 
cared  for,  "ought  to  have  borne  transportation' '  to  that  point.3 
Such  a  witness  may  also  be  asked  whether  hams  shipped  in  a 
specified  condition,  would  arrive  at  their  destination  in  as 
good  condition  as  when  shipped,  and  as  to  what  would  likely 
be  the  effect  of  the  weather  upon  provisions  so  shipped.4 

§  127.  Opinions  of  Experts  in  Miscellaneous  Cases — 
The  Subject  Continued. — The  owner  of  a  tan  yard,  who 
had  been  engaged  in  the  business  of  tanning  for  twenty- 
three  years,  "  seeing  the  work  going  on  and  knowing  how 
it  was  done,"  has  been  allowed  to  testify  as  an  expert  as  to 
matters  connected  with  such  business,  although  he  was  not 
himself  a  practical  tanner,  but  employed  others  to  do  the 
work  for  him.5  Where  the  question  was  as  to  the  quality 
of  the  soap  stone  in  a  particular  quarry,  one  who  had  been 
engaged  for  forty  years  in  quarrying  soap  stone,  and  who 
had  been  employed  in  manufacturing  soap  stone  into  pipe  for 
aqueducts  for  half  that  time,  was  allowed  in  the  court  below 
to  testify  as  an  expert  as  to  the  quality  of  the  stone.  But 
on  appeal,  the  court  held  that  his  testimony  should  not  have 
been  received,  saying :  "  It  did  not  appear  that  he  had  ever 
devoted  any  time  or  study  to  an  investigation  of  the  compo- 
sition and  characteristics  of  soap  stone,  or  made  any  partic- 
ular observations  on  that  subject,  so  as  to  be  better  qualified 
to  give  an  opinion  on  the  scientific  question  propounded  to 
him,  than  any  member  of  the  jury."6  In  an  action  to 


1  Shriver  v.  Sioux  City  etc.  R.  R.  Co.,  24  Minn.  506 

2  Richards  v.  Doe,  100  Mass.  524. 

3  Leopold  v.  Van  Kirk,  29  Wis.  648. 
«  Kerehaw  v.  Wright,  115  Mass.  331 

5  .Nelson  v.  Wood,  62  Ala.  175. 

6  Pa^re  v..  Parker,  40  X.  H.  59 


EXPERT  TESTIMONY  IN  THE  TKADES  AND  ARTS.  175 

recover  compensation  for  an  injury  caused  by  the  explosion 
of  an  oil  still,  a  witness  who  was  a  steam  fitter,  and  who  had 
no  knowledge  of  stills  except  such  as  he  had  derived  from 
working  with  them,  and  fitting  them  up  after  they  were  put 
up,  has  been  allowed  to  state  whether,  in  his  opinion,  the 
iron  of  which  the  tank  was  composed  was  sufficiently 
strong."1  Where  the  question  was  whether  a  sewer  con- 
structed along  the  walls  of  a  building  was  properly  con- 
structed, the  Supreme  Court  of  Indiana,  reversing  the  court 
below,  held  a  witness  not  qualified  to  testify  on  that  subject, 
who,  on  his  preliminary  examination,  stated:  "  I  have 
superintended  the  laying  of  some  sewer  pipe  along  the  sides 
of  walls.  I  have  noticed  some  little  such  work,  but  have 
not  specially  noticed  such  work.  I  have  put  in  sewers  here 
in  streets,  and  have  seen  some  such  work  as  this  done  in 
Indianapolis."2  A  witness  who  had  on  two  occasions  exam- 
ined cotton  that  had  been  under  water,  but  who  did  not 
know  how  long  such  cotton  had  been  under  the  water,  has 
been  held  incompetent  to  testify  as  to  the  injury  which 
would  probably  be  done  to  cotton  by  remaining  from  12  to 
24  hours  under  water. *  In  an  action  against  a  tender  of  a 
draw  bridge,  to  recover  damages  by  reason  of  his  neglect  to 
have  due  regard  and  caution  for  public  travel,  it  has  been 
held  improper  to  receive  the  opinion  of  another  draw  tender 
us  to  the  necessity  of  keeping  a  gate  shut  and  lanterns 
lighted  while  the  draw  was  open  in  the  night  time.  The 
question  was  not  one  of  science  or  skill.4  For  the  same 
reason,  it  is  error  to  allow  experts  to  testify  whether  a  cer- 
tain cattle  guard  was  suitable  and  sufficient  to  prevent  cattle 
from  getting  on  a  railroad  track.5  And  for  the  same  reason, 
farmers  cannot  be  allowed  to  express  an  opinion  as  to  the 
sufficiency  of  a  fence  to  restrain  cattle.6 


1  Ardeseo  Oil  Co.  v.  Gilsou,  63  Penn.  St.  146. 

2  Hinds  v.  Harbon,  58  Ind.  124. 

3  Weaver  v.  Alabama  etc.  Co.,  35  Ala.  176. 
*  Nowell  v.  Wright,  3  Allen  (Mass.),  166. 

5  Swartout  v.  N.  Y.  Central  R.  R.  Co.,  14  Hun  (N.  Y.),  575. 

6  Euright  v.  Railroad  Co.,  33  Cal.  230. 


176  EXPERT  TESTIMONY . 


CHAPTER  VII. 


EXPERT   TESTIMONY   IN    HANDWRITING. 

SECTION. 

128.  The  Scientific  Investigation  of  Handwriting. 

129.  Experts  in  Handwriting  —  Who  are  such. 

130.  Experts  in  Handwriting  —  Who  are  such  — The  Subject  Con- 

tinued. 

131.  Experts  in  Handwriting  —  The  Rule  as  stated  in  Iowa. 

132.  The  Testimony  of  Experts  in  Handwriting. 

133.  The  Testimony  of  Experts  iu  Handwriting  — The  Subject  Con- 

tinued. 

134.  The  Testimony  of  Experts  Based  on  the  Nature  of  the  Ink. 

135.  The  Qualifications  of  Experts  in  such  Cases. 

136.  Comparison  of  Writings  in  Juxtaposition. 

137.  Statutory  Provisions  in  England  and  the  United  States  concern- 

ing Comparison  of  Writings. 

138.  Comparison  of  Writings  in  the  Absence  of  Statutory  Provisions. 

139.  Comparison  of  Writings  in  the  Absence  of  Statutory  Provisions— 

The  Subject  Continued. 

140.  Comparison  of  Writings  in  the  Absence  of  Statutory  Provisions — 

Comparison  by  Experts  with  Writings   Admitted    to    be 
Genuine. 

141.  Comparison  of  Writings  in  the  Absence  of  Statutory  Provisions- 

Comparison  by  Experts  with  Writings  Proved  or  Admitted 
to  be  Genuine. 

142.  Proof  of  the  Genuineness  of  the  Writings  offered  for  Comparison. 

143.  The  Expert  should  have  before  him  in  Court  the  Writings  Com- 

pared. 

144.  The  Writing  Compared  should  be  the  Original,  and  not  a  Pho- 

tographic Copy. 

145.  Comparison  with  Photographic  Copies  Allowed  when. 

146.  Writings  Admissible  for  Comparison  in  Orthography. 

147.  Comparison  with  Writings  made  on  the  Trial. 

148.  Comparison  of  Writings  —  Teeing  Accuracy  of  Expert  on  Cross- 

Examination. 

149.  Detection  of  Counterfeit  Bank  Xotes. 

150.  Regulation  of  such  Evidence  by  Statutory  Provision. 


EXPERT  TESTIMONY  IN  HANDWRITING.  177 

§  128.   The  Scientific  Investigation  of  Handwriting. — 

Calligraphic  experts  have  for  years  asserted  the  possibility 
of  investigating  handwriting  upon  scientific  principles,  and 
the  courts  have  consequently  admitted  such  persons  to  tes- 
tify in  cases  of  disputed  handwriting.  Judicial  experience 
has  justified  to  a  certain  extent  the  claims  made  by  the  ex- 
perts. It  may  be  asserted,  therefore,  that  experiment  and 
observation  have  disclosed  the  fact  that  there  are  certain 
general  principles  which  may  be  relied  upon  in  questions 
pertaining  to  the  genuineness  of  handwriting.  For  instance, 
it  seems  to  be  established  that  in  every  person's  manner  of 
writing,  there  is  a  certain  distinct  prevailing  character, 
which  can  be  discovered  by  observation,  and  being  once 
known  can  be  afterwards  applied  as  a  standard  to  try  other 
specimens  of  writing,  the  genuineness  of  which  is  disputed.1 
Handwriting,  notwithstanding  it  maybe  artificial,  is  always, 
in  some  degree,  the  reflex  of  the  nervous  organization  of 
the  writer.  Hence  there  is  in  each  person's  handwriting 
gome  distinctive  characteristic,  which,  as  being  the  reflex  of 
lais  nervous  organization,  is  necessarily  independent  of  his 
own  will,  and  unconsciously  forces  the  writer  to  stamp  the 
writing  as  his  own.  Those  skillful  in  such  matters  state  that 
it  is  iinposssble  for  a  person  to  successfully  disguise  in  a 
writing  of  any  length  this  characteristic  of  his  penmanship  ; 
that  the  tendencies  to  angles  or  curves  developed  in  the 
analysis  of  this  characteristic  may  be  mechanically  measured 
by  placing  a  fine  specimen  within  a  coarser  specimen,  and 
that  the  strokes  will  be  parallel  if  written  by  the  same  per- 
son, the  nerves  influencing  the  direction  which  the  will  gives 
to  the  pen. 

So,  too,  it  is  claimed  that  no  two  autograph  signatures, 
written  in  a  natural  hand,  will  be  perfect  fac  similes.  In 
the  famous  Howland  will  case,2  Prof.  Pierce,  a  very  distin- 
guished mathematician,  at  that  time  the  professor  of  math- 
ematics in  Harvard  University,  testified  that  the  odds  were 

1  See  Plunkett  v.  Bowman,  2  McCorcl,  139. 
*  4  Am.  Law  Review,  G25.  G49. 

(12) 


178  EXPERT  TESTIMONY. 

just  exactly  2,866,000,000,000,000,000,000  to  1  that  an 
individual  could  not  with  a  pen,  write  his  name  three  times 
so  exactly  alike  as  were  the  three  alleged  signatures  of 
Sylvia  Ann  Howland,  the  testatrix,  to  a  will  and  two  codi- 
cils. The  experts,  therefore,  claim,  that  if,  upon  super- 
imposition  against  the  light,  they  find  that  two  signatures 
perfectly  coincide,  that  they  are  perfect  fac  similes,  that  it  is 
a  probability,  amounting  practically  to  a  certainty,  that  one 
of  the  signatures  is  a  forgery. 

It  thus  appears  that  there  is  abundant  justification  for  the 
holding  of  the  courts  that  there  is  a  science  of  handwriting, 
and  that  experts  who  have  qualified  themselves  by  study 
and  experience,  should  be  received  to  testify  to  the  genu- 
iness  and  identity  of  handwriting. 

§  129.  Experts  in  Handwriting — Who  are  such. —  It  is, 
of  course,  error  to  receive  the  opinion  of  any  witness,  of- 
fered as  an  expert,  until  he  has  first  been  examined  touch- 
ing his  skill  and  experience  in  the  examination  and  compar- 
ison of  handwriting ;  to  the  end  that  the  court  may  be  sat- 
isfied that  he  is  really  possessed  of  skill  in  that  department 
of  inquiry.1  The  necessity  of  such  a  preliminary  examina- 
tion in  all  cases,  has  been  elsewhere  fully  considered.2 

The  principle  has  been  laid  down  in  general  terms,  that 
whenever  handwriting  is  a  subject  of  controversy  in  judicial 
proceedings^  the  opinions  of  "  witnesses  who  by  study, 
occupation  and  habit  have  been  skillful  in  marking  and  dis- 
tinguishing the  characteristics  of  handwriting,"  may  be  re- 
ceived in  evidence.3  Hence  writing  engravers,  accustomed 
accurately  to  examine  the  formation  of  letters  in  different 
handwritings,  and  who  had  acquired  skill  from  their  occu- 
pation of  making  engravings  of  handwritings,  have  been 
allowed  to  testify  as  experts  in  such  cases.4  In  the  same 


1  State  v.  Ward,  29  Vt.  225,  236;  McCracken  v.  West,  17  Ohio,  16. 

s  See  §§  15,.1,6,.17,,  18. 

8  Sweetser  v.  Lowell,  33  Me.  450. 

4  Spear  v.  Bone,  MSS.  (cited  in  5  A.  &  E.  709)  ;  Regina  v.  Williams.  8 
Cafe.  &  P.  34;  Norman  v.  Morell,  4  Vesey  Ch.  768;  Turnbull  v.  Dodds, 
6I&  (Sc.)  901.. 


EXPERT  TESTIMONY  IN  HANDWRITING.  179 

way  tellers l  and  cashiers  2  of  banks  have  been  received  as 
experts,  having  acquired  skill  in  passing  on  the  genuineness 
of  signatures  to  notes  and  checks.  And  in  general  any  offi- 
cer of  a  bank  whose  business  it  is  to  examine  papers  with  a 
view  of  detecting  alterations  and  erasures,  and  ascertaining 
genuine  from  spurious  writings,  is  an  expert  in  questions 
pertaining  to  handwriting.3  So  a  clerk  in  the  postoffice, 
accustomed  to  the  inspection  of  franks  for  the  detection  of 
forgeries,  has  been  deemed  to  possess  the  qualifications  of 
an  expert,4  So  has  a  sheriff  of  a  county,5  and  a  county 
clerk,6  each  having  been  accustomed  to  pass  on  the  genuine- 
ness of  signatures.  One  who  for  some  years  had  been  the 
bookkeeper  and  cashier  of  a  commercial  house,  and  as  such 
had  experience  in  the  examination  of  handwriting  to  deter- 
mine its  genuiness,  has  been  held  sufficiently  qualified  to 
give  evidence  as  an  expert.7  A  writing  master  has  testified 
as  an  expert,  the  question  being  whether  a  writing  was  in  a 
natural  or  simulated  hand.8  A  person,  by  profession  a  law- 
yer, was  held  a  competent  witness,  his  preliminary  examina- 
tion showing  that  he  had  occasion  to  examine  handwriting 
with  a  view  to  a  comparison  of  writings ;  that  he  had  been 
called  to  the  stand  as  a  witness  in  regard  to  them,  a  good 
many  times  ;  that  he  had  never  made  a  business  of  criti- 
cising writing,  but  had  been  accustomed  to  do  it,  and  sup- 
posed he  could  identify  handwriting  pretty  well.9 

§  130.  Experts  in  Handwriting  —  Whoaresuch  —  The 
Subject  Continued. —  It  is  evident  from  the  cases  referred 
to  in  the  foregoing  section  that  great  importance  attaches  to 
the  avocation  in  life  of  the  witness.  If  it  has  been  such  as 

1  Speideti  v.  State,  3  Texas  Ct.  of  App.  159. 

»  Dubois  v.  Baker,  30  N.  Y.  355,  361 ;  People  v.  Hewitt,  2  Parker's  Cr. 
Cas.  20;  State  v.  Phair,  48  Vt.'366,  369;  Lyonv.  Lyman,  9  Conn.  59,  60; 
Murphy  v.  Hagerman,  Wright  (Ohio),  293. 

3  Pate  v.  People,  3  Gilm.  644,  659. 

4  Kevett  v.  Braham,  4  Term,  49. 
•  Yates  v.  Yates,  76  N.  C.  142. 

«  State  v.  Phair,  48  Vt.  366,  369. 

7  State  v.  Ward,  39  Vt.  225. 

8  Moody  v..  Rowell,  17  Pick.  (Mags.)  490. 

9  State  v.  Phair,  48  Vt.  366, 369. 


180  EXPERT  TESTIMONY. 

naturally  qualifies  him  to  judge  of  handwriting,  the  court 
will  allow  him  to  testify  as  an  expert.  If,  however,  his 
business  experience  has  not  been  such  as  to  give  him  any 
special  skill  in  the  examination  of  disputed  writings,  he  will 
not  be  permitted  to  testify  as  an  expert,  unless  it  is  made 
to  appear  that  he  has  in  some  other  way  acquired  actual 
skill  and  scientific  knowledge.1  The  rule  is  well  laid  down 
in  a  recent  case  in  the  Supreme  Court  of  California,  where 
it  is  said  that  the  witness  "  must  have  been  educated  in  the 
business  about  which  he  testifies  ;  or  it  must  first  be  shown 
that  he  has  acquired  actual'  skill  and  scientific  knowledge 
upon  the  subject."  2  If  the  witness  has  really  acquired  ac- 
tual skill  and  scientific  knowledge  upon  the  subject  of  hand- 
writing, he  is  none  the  less  an  expert  because  he  has  not 
happened  to  have  been  in  situations  where  his  duty  required 
him  to  distinguish  between  genuine  and  counterfeit  hand- 
writing.3 

.  The  fact  that  the  expert  has  no  other  knowledge  of  the 
writing  in  dispute  than  that  derived  by  a  comparison  of  the 
disputed  writing  with  others  that  are  genuine,  is  not  re- 
garded as  any  disqualification  whatever.4  This  must  be 
regarded  as  the  rule,  although  it  was  laid  down  at  one  time 
in  the  inferior  courts  of  New  York,  that  an  expert  who  had 
never  seen  the  party  write  could  not  give  his  opinion  as  to 
the  genuineness  of  the  writing  in  question  based  solely  on  a 
comparison  of  writings,  but  that  he  was  to  testify  to  the 
condition  and  appearance  of  the  words,  and  of  the  letters 
and  characters  contained  in  the  writings,  and  point  out  and 
explain  similarities  and  differences.5  When  an  expert  ac- 
quires a  knowledge  of  the  handwriting  of  a  person  by  sim- 
ply observing  him  write  several  times,  and  this  for  the  pur- 

1  State  y.  Tompkins,  71  Mo.  616;  Wagner  v.  Jacoby,  26  Mo.  530. 

2  Goldstein  v.  Black,  50  Cal.  464. 
8  Sweetser  v.  Lowell,  33  Me.  450. 

*  Miles  v.  Loomis,  75  N.  Y.  287;  State  v.  Shinborn,  46  N.  H.  497;  Cal- 
kins v.  State,  14  Ohio  St.  222;  Macomber  v.  Scott,  10  Kans.  335;  Moody 
v.  Eowell,  17  Pick.  (Mass.)  490. 

5  Roe  v.  Roe,  40  N.  Y.  Superior  Ct.  1 ;  Frank  v.  Chemical  National 
Bank,  37  ib.  30. 


EXPERT  TESTIMONY  IN  HANDWRITING.  181 

pose  of  testifying,  it  is  laid  down  that  he  is  incompetent  to 
give  an  opinion  as  to  the  genuineness  of  that  person's  sig- 
nature.1 It  is  quite  possible  that  the  party  may  have  writ- 
ten differently  through  design.2 

Mere  opportunity  afforded  for  observation  of  handwriting 
does  not  of  itself  qualify  one  to  give  testimony  as  an  ex- 
pert in  the  science  of  handwriting,  and  the  mere  fact  that  a 
witness  has  sometimes  compared  the  signatures  of  individ- 
uals, where  disagreements  as  to  their  genuineness  have 
arisen,  has  been  held  not  sufficient  to  render  him  competent 
to  testify  as  an  expert  in  disputed  writings.3 

§  131 .  Experts  in  Handwriting  —  The  Rule  as  Stated  in 
Iowa. —  In  Iowa  the  court  has  been  somewhat  liberal  in  its 
determination  of  what  is  necessary  to  qualify  one  as  an  ex- 
pert in  handwriting.  According  to  the  view  taken  by  that 
court  it  would  appear  that  almost  any  business  man  is  quali- 
fied to  express  an  opinion  as  an  expert  in  such  cases.  A 
witness  has  there  been  held  competent,  who  testified  on  his 
preliminary  examination  that  he  did  not  consider  himself 
an  expert  in  handwriting,  and  had  never  made  it  a  business 
to  compare  or  detect  feigned  or  forged  handwriting.  That 
he  presumed  he  had  some  skill  in  comparing  handwriting, 
but  did  not  pretend  to  any  extra  skill,  simply  thinking  that 
he  was  as  good  a  judge  as  business  men  generally.  He  had 
been  a  clerk  in  a  store,  the  editor  of  a  newspaper,  and  for 
the  last  fifteen  years  a  lawyer.  He  had  examined  a  good 
deal  of  writing,  and  said  he  had  been  in  the  habit  of  examin- 
ing bank  bills  to  test  their  genuineness.  So,  in  the  same  case, 
a  merchant  was  held  competent,  who  did  not  profess  to  be 
an  expert,  but  had  examined  bank  bills  to  detect  counter- 
feits.4 A  witness  who  merely  professed  to  be  as  good  a 
judge  of  handwriting  as  business  men  generally,  would 
certainly  not  be  regarded  in  some  courts  as  possessing  the 
peculiar  skill  of  an  expert.  But  the  court  say  that,  "  It  is 

1  Reese  v.  Reese,  90  Penn.  St.  89. 
1  Stranger  v.  Searle,  1  Espinasse,  14. 

3  Goldstein  v.  Black,  50  Gal.  464. 

4  Hyde  v.  Woolfolk,  1  Iowa,  159. 


182  EXPERT  TESTIMONY. 

true  that  persons  giving  evidence  on  a  matter  pertaining  to 
their  particular  science,  trade  or  art,  come  most  strictly  and 
technically  under  the  term  «  experts,'  but  we  cannot  consent 
to  the  proposition  that  no  others  come  within  it,  and  are 
allowed  to  be  witnesses  in  any  case.  It  may  very  probably 
be  true,  that  none  are  to  be  taken  as  experts  on  matters  per- 
taining to  a  particular  calling,  art  or  science,  but  those  who 
are,  or  have  been  practiced,  in  such  art  or  science.  But 
there  are  many  subjects  of  inquiry  which  do  not  belong  to- 
a  particular  art,  etc.,  but  on  which  a  greater  or  less  degree 
of  knowledge  is  common  to  many  men  in  different  call- 
ings." And  the  court  concluded  that  a  comparison  of 
writings  did  not  present  such  an  inquiry  as  required  a  wit- 
ness of  a  particular  calling  as  an  expert,  but  that  his  com- 
petency depended  on  his  means  of  knowledge  as  a  busi- 
ness man  and  his  intelligence. 

§  132.  The  Testimony  of  Experts  in  Handwriting. — 
Experts  in  handwriting  are  permitted  to  express  an  opinion 
on  the  question  whether  a  writing  is  in  a  natural  or  a  simu- 
lated hand  ; *  whether  it  appears  more  cramped  and  confined 
than  the  hand  which  the  writer  usually  wrote  ; 2  and  as  to 
which  of  two  instruments  exhibits  the  greater  ease  and  fa- 
cility of  writing.3  They  have  been  permitted  to  testify  that 
a  certain  writing  bore  the  appearance  of  having  been  touched 
by  a  pen  a  second  time,  as  if  done  by  some  one  attempting 
to  copy  or  imitate  the  handwriting  of  another.4  And  on  an 
indictment  for  uttering  a  forged  will,  which,  together  with 
writings  in  support  of  it,  it  was  suggested  had  been  written 
over  pencil  marks  which  had  been  rubbed  out,  the  testi- 

1  Queen  v.  Shepherd,  1  Cox  Cr.  Cas.  237;  Goodtitle  v.  Braham,  4  Term 
497;  Bex  v.  Cator,  4  Esp.  117;   Spear  T.  Bone  (MS.)  cited  in  5  A.  &  E. 
709;  Reilly  v.  Rivett,  1  Cases  in  Eng.  Eccls.  Cts.  43,  note  a;  Moody  v. 
Rowell,  17  Pick.  (Mass.)  490 ;  Commonwealth  v.  Webster,  5  Cush.  (Mass.), 
295;   Burdick  v.  Hunt,  43  Ind.  381;   Miles  v.  Loomis,  17  Hun  (N.  Y.)r 
372;  Goodyear  v.  Vosburgh,  63  Barb.  (N.  Y.)  154;  People  v.  Hevritt, 
Parker  Cr.  Cas.  20. 

2  Dubois  v.  Baker,  30  N.  Y.  355,  362. 

8  Demerritt  v.  Randall,  116  Mass.  331, 
4  Spear  v.  Bone,  supra. 


EXPERT  TESTIMONY  IN  HANDWRITING.  8 

inony  of  an  engraver  was  received,  who  had  examined  the 
paper  with  a  mirror  and  traced  the  pencil  marks.1 

It  has  been  held  competent  to  ask  an  expert  whether  cer- 
tain parts  of  a  writing  could  have  been  made  with  a  pen, 
but  not  whether  it  could  have  been  made  with  an  instru- 
ment which  was  found  in  the  possession  of  the  defendant.2 
So  an  expert  may  testify  whether  two  documents  were  writ- 
ten with  the  same  pen  and  ink,  and  at  the  same  time.3  And 
when  it  is  alleged  and  denied  that  the  body  and  signature  of 
an  instrument  are  in  the  same  handwriting,  he  may  be  asked 
to  express  an  opinion  whether  the  two  parts  were  written 
by  the  same  person.4 

Where  one  writing  crosses  another,  an  expert  may  testify 
which  in  his  opinion  was  written  first.6  His  opinion  has 
also  been  taken  on  the  question,  whether  certain  words  on 
a  paper  shown  him,  were  written  before  or  after  the  paper 
was  folded.6  And  the  judicial  committee  and  lords  of  the 
privy  council  have  called  an  expert  for  the  purpose  of  ob- 
taining his  opinion  as  to  whether  a  circumflex  line,  sur- 
rounding the  names  of  the  witnesses  to  a  will,  was  made 
before  or  after  the  signature.7 

In  consequence  of  a  deed  having  been  drawn  up  "in  an 
unusual  and  slovenly  manner,  and  so  as  at  first  sight  to 
cause  doubt  as  to  the  genuineness  of  a  part  of  it,"  Chief 
Justice  MEREDITH  ordered  an  expertise  in  the  .Quebec  Court 
of  Review,  and  this  course  was  not  disapproved  of  either  by 
the  Court  of  Appeals  or  the  Lords  of  the  Privy  Council.8 

§  133.  The  Testimony  of  Experts  in  Handwriting — The 
Subject  Continued. — It  is  well  settled  that  expert  testimony 

*  Regina  v.  Williams,  8  Car.  &  P.  34. 

2  Commonwealth  v.  Webster,  5  Gush.  (Mass.)  295. 

3  Fulton  v.  Hood,  34  Penu.  St.  365;  Quinsigmond  Bank  v.  Hobbs,  11 
Gray  (Mass.)  250. 

«  Keese  v.  Reese,  90  Penn.  St.  89. 

*  Cooper  v.  Bockett,  4  Moore  P.  C.  433;    Dubois  v.  Baker,  30  N.  Y. 
355. 

6  Bacon  v.  Williams,  13  Gray  (Mass.),  525. 

7  Cooper  v.  Bockett,  4  Moore  P.  C.  433. 

8  See  Hamel  v.  Panet,  3  Quebec  Law  R.  173,  175. 


184  EXPERT  TESTIMONY. 

is  admissible  upon  the  question  of  the  alteration1  or  erasure 
of  writings.2  A  holograph  will,  in  which  alterations  and 
interlineations  appeared,  has  been  admitted  to  probate  upon 
the  testimony  of  an  expert,  that  in  his  opinion,  the  altera- 
tions were  written  at  the  same  time  as  the  rest  of  the  will.8 
An  expert  accustomed  to  the  use  of  the  microscope,  having 
examined  the  note  in  question  through  that  instrument,  has 
been  allowed  to  testify  that  the  word  "  year"  in  the  body 
of  the  note  had  been  erased,  and  the  word  "  day  "  written 
upon  the  erasure.4  So  an  expert  has  been  permitted  to  ex- 
press an  opinion,  that  a  note  has  been  altered  by  the  substi- 
tution of  one  figure  for  another,5  and  whether  certain  words 
in  a  writing  had  been  cancelled.6 

An  engraver  has  been  examined  as  to  an  illegible  writing,7 
and,  in  general,  the  testimony  of  experts  is  admissible 
whenever  the  writing  is  obscure  and  difficult  to  be  deci 
phered.8  If  the  writing  is  ancient,  an  expert  may  state  his 
belief  as  to  the  probable  period  at  which  it  was  written.9 
It  has  been  held  that  an  expert  could  not  express  an  opinion 
that  certain  words  were  interpolated  into  a  written  agree- 
ment after  the  signature  was  affixed,  if  such  opinion  was 
founded  on  the  situation  and  crowded  appearance  of  the 
words.10  And  how  much  a  man  can  improve  his  handwriting 
in  a  short  time,  is  not  a  subject  for  the  testimony  of  experts. 
It  has  been  held,  therefore,  improper  to  ask  an  expert 

1  Moye  v.  Herudon,  30  Miss.  118;  Viutcn  v.  Peck,  14  Mich.  287;  Pate 
v.  The  People,  3  Gilm.  (111.)  644. 

2  Edelin  v.  Sanders  Ex'r.  8  Md.  118;  Yates  v.  Waugh,  1  Jones  (N.  C.) 
Law.  483.    See  Swan  v.  O'Fallon,  7  Mo.  231;   Wagner  v.  Jacoby,  26 
Mo.  530. 

3  In  the  Goods  of  Hindmarch,  1  P.  &  M.  307. 
<  Dubois  v.  Baker,  30  X.  Y.  355. 

*  Nelson  v.  Johnson.  18  Ind.  329. 
«  Beach  v.  O'Riley.  14  W.  Va.  55. 
1  Norman  v.  Morell,  4  Vese}',  ch.  768. 

8  Masters  v.  Masters.  1  P.  Win.  425;  Stone  v.  Hubbard,  7  Cush.  (Mass.) 
595.    It  is  a  question  for  the  jury  and  not  for  the  court  to  decipher  illeg- 
ible letters  or  figures,  Armstrong  v.  Burrows,  6  Watts.  266,  268. 

9  Tracy  Peerage  Case,  10  Cl.  &  Fin.  154;  Doe  v.  Suckermore,  5  Ad.  & 
Ellis,  703,  718,  per  Coleridge,  J. 

10  Jewett  v.  Draper,  6  Allen  (Mass.),  434. 


EXPERT  TESTIMONY  IN  HANDWRITING.  185 

whether  a  man  could,  within  a  short  time,  so  improve  his 
handwriting,  as  shown  by  the  standard  signatures  of  the 
testator,  as  to  make  a  signature  of  as  good  a  handwriting  as 
that  of  the  will.1 

§  134.  The  Testimony  of  Experts  Based  on  tlie  Nature 
.of  the  Ink. —  Where  a  writing  purports  to  be  of  ancient  or 
recent  date,  the  testimony  of  experts,  who  have  made  a 
jnicro-chemical  examination  of  the  ink  in  which  the  instru- 
ment is  written,  is  received  to  show  the  nature  of  the  ink, 
whether  it  was  found  fresh  or  old,  and  whether  it  was  of 
such  a  nature  as  to  grow  old  rapidly.2  Such  testimony  is 
nl  so  received  when  the  question  arises  whether  a  portion  of 
the  writing  was  made  at  a  time  different  from  that  at  which 
the  rest  of  the  instrument  was  written,  or  whether  different 
inks  were  employed.3  Cases  have  been  referred  to  in  the 
sections  immediately  preceding  this,  showing  that  experts 
.are  permitted  to  express  an  opinion  as  to  the  probable  time 
at  which  an  instrument  was  written,  whether  different  parts 
of  the  same  instrument  were  written  at  the  same  time,  and 
with  the  same  ink,  and  where  two  writings  cross  each  other, 
iis  to  which  was  written  first.  In  all  these  inquiries  much 
Jight  can  be  obtained  from  experts  skillful  in  the  micro- 


1  McKeone  v.  Barnes,  108  Mass.  344,  317. 

2  See  18  Am.  Law  .Register  (N.  s),  273,  282. 

3  Ibid.  288.    A  distinguished  expert  in  the  scientific  investigation  of 
handwriting,  there  gives  an  interesting  account  of  a  case  of  this  nature, 
which  happened  to  come  within  his  personal  experience.     It  shows  how 
the  difference  iu  inks  may  often  be  ascertained  by  means  of  a  photo- 
graphic copy  of  the  writing.    He  says;  "  The  photograph  is  able  to  dis- 
tinguish shades  of  color  which  are  inappreciable  to  the  naked  eye;  thus 
where  there  is  the  least  particle  of  yellow  present  in  a  color  it  will  take 
notice  of  the  fact  by  making  the  picture  blacker,  just  in  proportion  as 
the  yellow  predominates,  so  that  a  very  light  yellow  will  take  a  deep 
black.    So,  any  shade  of  green,  or  blue,  or  red,  where  there  is  an  im- 
perceptible amount  of  yellow,  will  print  by  the  photographic  process 
jnore  or  less  black;  while  either  a  red  or  blue,  verging  to  a  purple,  will 
show  more  or  less  faint,  as  the  case  may  be.     Here  is  a  method  of  i  :ves- 
tigation  which  may  be  made  very  useful  in  such  cases,  and  which  will 
give  no  uncertain  answer."    In  Goodyear  v.  Vosburgh,  63  Barb.  (X.  Y.) 
154,  the  difference  in  the  color  of  the  ink  used  was  taken  into  considera- 
tion. 


186  EXPERT  TESTIMONY. 

chemical  examination  of  inks.  The  importance  of  such  tes- 
timony, is  well  illustrated  by  a  case  very  recently  decided  int 
the  Supreme  Court  of  Michigan,  where  an  exact  similarity 
in  the  inks  used  in  executing  two  different  instruments, 
bearing  different  dates,  was  treated  in  connection  with  other 
suspicious  facts,  as  tending  to  indicate  that  both  writings 
were  made  at  the  same  time.1 

"When  two  writings  cross  each  other,  if  the  writing  was- 
done  with  a  different  kind  of  ink,  the  question  which  was- 
the  superposed  ink  may  be  easily  determined  by  wetting  a 
piece  of  paper  with  a  compound  which  acts  as  a  solvent  of 
ink.  By  pressing  the  paper  upon  the  writing  in  question,  a 
thin  layer  of  the  superposed  ink  will  be  transferred  to  the 
prepared  paper,  thereby  furnishing  an  answer  to  the  ques^ 
tion  propounded.  If  the  same  kind  of  ink  was  used,  the* 
case  presents  greater  difficulties,  and  other  methods  are  re- 
sorted to.  But  to  attempt  to  determine  the  question,  as  is 
often  done,  by  the  aid  of  the  eye  or  the  magnifying  glass, 
is  said  to  be  no  better  than  guess  work.2 

§  135.  The  Qualifications  of  Experts  in  such  Cases. — 
In  all  cases  where  opinions  are  desired  predicated  upon  the 
nature  of  the  ink  used,  an  expert  microscopist  and  chemist, 
accustomed  to  the  examination  of  inks  for  the  purpose  of 
determining  the  nature  and  properties  of  different  inks, 

1  Sheldon  v.  Warner,  45  Mich.  638. 

2 18  Am.  Law  Keg.  (N.  s.)  273,  287.  where  R.  U.  Piper,  M.  D.,  of  Chi- 
cago, a  microscopic  and  chemical  expert  in  the  examination  of  writings, 
says :  "  I  took  for  the  purpose  of  my  experiment  ten  of  the  most  common 
kinds  of  ink  found  in  the  market,  and  drew  a  series  of  lines,  three  in 
number,  with  each  kind  of  ink,  across  a  sheet  of  paper.  This  was  fol- 
lowed by  a  similar  series  drawn  diagonally  across  the  first,  thus  forming 
a  hundred  points  of  crossing,  and  placing  each  kind  of  ink  above  and 
also  under  all  the  others.  In  thirty -seven  cases  out  of  the  hundred,  the 
eye.  with  or  without  the  glass,  saw  the  under  ink  as  if  it  were  on  the 
surface;  in  forty  cases  nothing  could  be  decided  in  this  respect;  the 
balance  told  the  truth  of  the  matter.  By  the  other  method,  that  is,  by 
the  use  of  the  solvent,  the  true  facts  could  be  made  plain  in  everyone  of 
these  cases.  This  experiment,  as  will  be  seen,  was  made  with  ten  kinds 
of  ink  more  or  less  differing  from  each  other  in  color  and  in  chemical 
composition,  and  it  certainly  proves  that  all  such  testimony,  as  I  have 
said,  has  been  thus  far  no  better  than  guess  work." 


EXPERT  TESTIMONY  IN  HANDWRITING.  187 

and  the  age  of  writings,  would  unquestionably  be  compe- 
tent to  express  an  opinion.  But  whenever  the  question  re- 
lates to  the  age  of  a  writing,  an  expert  who  has  simply  been 
in  the  habit  of  studying  the  genuiness  of  handwriting,  for 
the  mere  purpose  of  determining  whether  it  was  in  the 
handwriting  of  the  person  by  whom  it  purported  to  have 
been  written,  would  not  be  competent  to  express  an  opin^ 
ion.1  For  that  involves  a  question  in  a  very  different  de- 
partment of  inquiry,  and  it  is  necessary  that  the  witness 
should  have  made  that  subject  a  matter  of  special  study 
and  investigation.  The  courts  cannot  be  too  careful  in 
passing  on  the  qualifications  of  witnesses  offered  as  experts 
in  this  particular  line  of  inquiry.2 

There  are  two  cases  to  be  noticed  in  this  connection. 
The  first  was  decided  in  the  Supreme  Court  of  North  Caro- 
lina in  the  year  1854.  In  that  case  the  defendant  contended 
that  although  the  instrument  declared  on  was  in  the  hand- 
writing of  his  testator,  yet  the  body  of  it  was  a  forgery, 
the  original  having  been  removed  by  some  chemical  process, 
and  the  present  writing  substituted.  To  show  this  a  wit- 
ness was  introduced  who  was  not  a  professed  chemist,  and 
who  knew  little  or  nothing  about  the  science.  The  trial 
court  permitted  him  to  testify  that  he  had  just  seen  an  ex- 
periment performed,  whereby  legible  writing  with  ordinary 
ink,  had  been  erased  and  extracted  from  a  piece  of  paper 
(which  he  then  held  in  his  hand),  by  the  application  of  cer- 
tain chemicals.  The  object  of  the  testimony  was  to  show 
that  ink  might  be  removed  from  paper  without  injuring  its 

1  Clark  v.  Bruce,  19  N.  Y.  Sup.  Ct.  (12  Hun),  271,  273.  See,  too, 
Ellingwood  v.  Bragg,  52  3J.  H.  488. 

8  '•  I  have  repeatedly."  says  Dr.  Piper.  "  examined  papers  which  have 
been  made  to  appear  old  by  various  methods,  such  as  washing  with, 
coffee,  with  tobacco  water,  and  by  being  carried  in  the  pocket  near  the 
person,  by  being  smoked  and  partially  burnt,  and  in  various  other  ways. 
I  have  in  my  possession  a  paper  which  has  passed  the  ordeal  of  many  ex- 
aminations by  experts  and  others,  which  purports  to  be  two  hundred 
years  old,  and  to  have  been  saved  from  the  Boston  fire.  The  hand- 
writing is  a  perfect  fac  simile  of  that  of  Thomas  Addington,  the  town 
clerk  of  Boston  two  hundred  years  ago,  and  yet  this  paper  is  not  over 
two  years  old."  18  Am.  Law  Register  (N.S.),  273,  289. 


188  EXPERT  TESTIMONY, 

texture.  The  Supreme  Court  held  that  he  was  not  properly 
qualified.1  That  the  witness  was  not  qualified  to  give  testi- 
mony as  an  expert  is  entirely  clear,  but  it  is  somewhat  diffi- 
cult to  understand  why  he  was  not  competent  to  testify  in 
the  character  of  an  ordinary  witness,  to  the  fact  which  he 
had  observed,  namely,  that  certain  effects  followed  the  ap- 
plication of  the  chemicals  to  the  paper  in  the  instances 
which  he  witnessed. 

The  other  is  a  case  decided  in  the  Supreme  Court  of  Cal- 
ifornia, which  was  an  indictment  for  forgery.  The  testi- 
mony showed  that  a  powder,  composed  of  three  parts  of 
hydro-carbonate  of  soda  to  one  part  of  chlorate  of  potash, 
was  found  in  the  baggage  of  one  of  the  defendants.  And 
.a  police  officer  was  permitted  to  testify  that  he  had  used  a 
portion  of  the  powder  found  by  him  in  the  defendant's  bag- 
gage, in  connection  with  muriatic  acid,  for  the  purpose  of 
extracting  ink  from  paper ;  and  that,  with  the  use  of  a 
camel's  hair  brush,  he  had  extracted  the  ink  from  two 
checks  —  one  prepared  by  counsel  of  defendant,  and  the 
other  written  in  imitation  of  the  original  check  and  with  the 
same  kind  of  ink.  That  the  ink  was  extracted  from  the 
body  of  the  checks  without  affecting  the  signatures,  and 
leaving  the  parts  where  the  ink  was  extracted  perfectly 
white,  the  texture  of  the  paper  being  uninjured.2  Here  the 
witness  was  not  an  expert,  but  he  was  permitted  to  testify 
to  the  facts  which  he  had  observed. 

§  136.  Comparison  of  Writings  in  Juxtaposition. — 
There  are  two  distinct  methods  of  judging  of  the  genuine- 
ness of  handwriting  by  means  of  comparison.  According 
to  one  method,  a  witness  who  has  acquired  personal  knowl- 
edge of  another's  handwriting,  by  having  seen  such  person 
write,  or  by  having  received  letters  from  him  in  due  course 
•of  business,  may  have  formed  in  his  mind  an  exemplar  of 
the  individual's  handwriting,  so  that,  upon  the  presentation 
•of  a  signature,  he  can  say,  by  comparing  it  with  the  exem- 
plar in  his  mind,  whether  it  corresponds  or  not  with  such 

1  Otey  v.  Hoyt,  2  Jones  (X.  C.)  Law,  70. 

2  People  v.  Brotherton,  47  Cal.  395, 402. 


EXPERT  TESTIMONY  IN  HANDWRITING.  18$ 

exemplar.  According  to  the  other  method,  a  witness  who 
has  no  personal  knowledge  of  another's  handwriting,  and 
therefore  no  exemplar  in  his  mind,  has  before  him  in  juxta- 
position, the  writing  in  dispute  with  other  writings  admitted 
or  proved  to  be  genuine,  and  from  a  comparison  of  such 
writings  expresses  an  opinion  whether  the  writings  were 
made  by  the  same  person.  The  first  is  the  comparison 
which  the  ordinary  witness  makes,  when  testifying  from 
personal  knowledge.  The  second  is  the  comparison  which 
an  expert  makes,  testifying  without  such  personal  knowl- 
edge. 

In  France,  papers  admitted  to  be  genuine,  and  writings 
of  a  public  nature,  such  as  signatures  written  in  the  pres- 
ence of  a  notary  or  judge,  or  written  or  signed  in  a  public 
capacity,  are  submitted  to  sworn  experts,  appointed  by  the 
court,  for  comparison  with  the  disputed  writing.1 

In  England,  a  comparison  of  handwriting  placed  in  juxta- 
position, has  always  been  permitted  in  the  ecclesiastical 
courts.2  But  in  the  common  law  courts  a  different  rule  was 
adopted,  and  experts  were  not  allowed  in  those  courts  to 
express  an  opinion  based  on  a  comparison  of  hands  placed 
in  juxtaposition,3  until  the  year  1854,  when  Parliament 
passed  an  act,  hereafter  set  forth,  which  authorized  such 
comparison  to  be  made.  But  in  the  case  of  ancient  docu- 
ments, so  old  that  they  could  not  be  authenticated  by  living 
witnesses,  opinions  based  on  a  comparison  of  hands  in  jux- 
taposition, were  admitted  from  necessity,  even  in  the  com- 
mon law  courts.4 

1  Code  de  Procedure  Civile,  Part  I.,  §  2,  tit.  10,  §  200. 

2  Beaumont  v.  Perkins,   1  Phillitnore,  78;  Reilly  v.  Rivett,  Prerog. 
1792,  1  Cases  in  Eng.  Ece.  Cts.  43,  note  a;  Heath  v.  Watts  Prerog.  1798, 
Ibid,  note  b;  Saph  v.  Atkinson,  2  Eng.  Ecc.  K.  64,  88,  89;    Machin  v. 
Grindon,  2  Gas.  temp.  Lee,  335;  s.  c.,  2  Addams,  91,  note  a;  1  Oughton's 
Ordo  Judiciorum,  tit.  225.  De  Comparatione  Litterarum,  etc.,  §§  1,  2,  3, 
10,11  (1728). 

a  Doe  v.  Suckermore,  5  Ad.  &  Ellis,  703. 

4  Morewood  v.  Wood,  14  East,  327,  note  a;  Howe  v.  Rawlings,  7  East, 
282,  note  a;  Taylor  v.  Cook,  8  Price.  650;  Doe  v.  Tarver,  R.  &  M.  141; 
Doe  v.  Suckermore,  5  Ad.  &  Ellis,  703,  717,  724.  So  in  Canada,  Thomp- 
son v.  Bennett,  22  Upper  Canada  (C.  P.)  393,  405,  406. 


190  EXPERT  TESTIMONY. 

In  this  country  a  difference  of  opinion  has  prevailed,  and 
some  of  our  State  courts  have  denied,  while  others  have 
maintained  the  right  to  introduce  the  testimony  of  experts 
based  on  a  comparison  of  writings  placed  in  juxtaposition. 
But  in  this  country,  as  in  England,  there  has  been  unanimity 
in  holding  that  such  evidence  is  admissible  in  the  case  of 
ancient  documents.1 

§  137.  Statutory  Provisions  in  England  and  in  the 
United  States  Concerning  Comparison  of  Writings. —  All 
dispute  as  to  the  right  to  receive  the  testimony  of  experts 
based  on  a  comparison  of  hands,  has  been  put  to  rest  in 
England,  and  in  some  of  the  States  of  this  country  by  stat- 
utory provisions  adopted  for  that  purpose.  These  provi- 
sions differ  somewhat,  some  of  them  being  more  restricted 
than  others.  They  are  as  follows  : 

England. —  "  Comparison  of  a  disputed  writing  with  any 
writing  proved  to  the  satisfaction  of  the  judge  to  be  genuine, 
shall  be  permitted  to  be  made  by  witnesses,  and  such  writ- 
ings, and  the  evidence  of  witnesses  respecting  the  same, 
may  be  submitted  to  the  court  and  jury  as  evidence  of  the 
genuineness  or  otherwise  of  the  writing  in  dispute."  2 

1  West  v.  State,  22  N.  J.  Law,  241,  242;  Clark  v.  Wyatt,  15  Ind.  271; 
Willson  v.  Betts,  4  Denio  (N.  Y.),  201;  State  v.  Givens,  5  Ala.  754;  Kirk- 
sey  v.  Kirksey,  41  Ala.  626,  640 ;  Strother  v.  Lucas,  6  Peters,  763,  767. 

3  28  and  29  Victoria,  ch.  18,  §  8.  In  1854  a  similar  provision  was 
passed,  but  it  was  confined  in  its  operation  to  the  admission  of  evidence 
in  civil  cases.  17  and  18  Viet.,  ch.  125.  Bnt  in  1865  the  provision  was 
made  applicable  alike  to  civil  and  criminal  cases.  In  reference  to  this 
provision  it  is  laid  down  as  follows :  "  Under  this  statutory  law  it  seems 
clear,  first,  that  any  writings,  the  genuineness  of  which  is  proved  to  the 
satisfaction,  not  of  the  jury,  but  of  the  judge  (see  Eagan  v.  Cowan,  30 
Law  Times,  223,  in  Ir.  Ex."),  may  be  used  for  the  purposes  of  compari- 
son, although  they  may  noc  be  admissible  in  evidence  for  any  other  pur- 
pose in  the  cause  (Birch  v.  Eidgway,  1  Fost.  &  Fin.  270;  Cresswell  v. 
Jackson,  2  Fost.  &  Fin.  24) ;  and  next,  that  the  comparison  may  be 
made  either  by  witnesses  acquainted  with  the  handwriting,  or  by  wit- 
nesses skilled  in  deciphering  handwriting,  or,  without  the  intervention 
of  any  witnesses  at  all,  by  the  jury  themselves  (Cobbett  v.  Kilminster, 
4  Fost.  &  Fin.  490,  per  Martin,  B.),  or  in  the  event  of  there  being  no 
jury,  by  the  court."  2  Taylor's  Evidence,  §  1668.  It  is  to  be  observed, 
however,  that  this  statute  expressly  provides  that  it  is  not  to  apply  to 
Scotland. 


EXPERT  TESTIMONY  IN  HANDWRITING.  191 

California. —  "  Evidence  respecting  the  handwriting  may 
also  be  given  by  a  comparison,  made  by  the  witness  or  the 
jury,  with  writings  admitted  or  treated  as  genuine  by  the 
party  against  whom  the  evidence  is  offered  or  proved  to  be 
genuine  to  the  satisfaction  of  the  judge."  * 

Qeorgia. —  "  Other  writings,  proved  or  acknowledged  to 
be  genuine,  may  be  admitted  in  evidence  for  the  purpose  of 
comparison  by  the  jury.  Such  other  new  papers,  when  in- 
tended to  be  introduced,  shall  be  submitted  to  the  opposite 
party  before  he  announces  himself  ready  for  trial."  2 

Iowa. —  "  Evidence  respecting  handwriting  may  be  given 
by  comparison  made  by  experts  or  by  the  jury,  with  writ- 
ings of  the  same  person  which  are  proved  to  be  genuine."  3 

Nebraska.  —  "Evidence  respecting  handwriting  may  be 
given  by  comparisons  made  by  experts  or  by  the  jury,  with 
writings  of  the  same  person  which  are  proved  to  be  genuine." 4 

New  Jersey. —  "In  all  cases  where  the  genuineness  of 
any  signature  or  writing  is  in  dispute,  comparison  of  the 
disputed  signature  or  writing  with  any  writing  proved  to 
the  satisfaction  of  the  court  to  be  genuine,  shall  be  permit- 
ted to  be  made  by  witnesses  ;  and  such  writings,  and  the 
testimony  of  witnesses  respecting  the  same,  may  be  submit- 
ted to  the  court  or  jury  as  evidence  of  the  genuineness  or 
otherwise  of  the  signature  or  writing  in  dispute,  provided, 
nevertheless,  that  where  the  handwriting  of  any  person  is 
sought  to  be  disproved  by  comparison  with  other  writings 
made  by  him,  not  admissible  in  evidence  in  the  cause  for 
any  other  purpose,  such  writings,  before  they  can  be  com- 
pared with  the  signature  or  writing  in  dispute,  must,  if 
sought  to  be  used  before  the  court  or  jury  by  the  party  in 
whose  handwriting  they  are,  be  proved  to  have  been  written 
before  any  dispute  arose  as  to  the  genuineness  of  the  signa- 
ture or  writing  in  controversy."  5 

1  Code  of  Civil  Procedure,  §  1944. 

2  Revised  Code  (1873),  p.  674,  §  3840. 

3  Code  (1873)  §  3655;  2  McClain's  Annotated  Statutes  (1880),  p.  922, 
§  3655. 

*  Compiled  Statutes  (1881),  p.  576,  §  344. 
5  Revision  (1877),  p.  381,  §  19. 


192  EXPERT  TESTIMONY. 

New  York. —  "Comparison  of  a  disputed  writing  with 
any  writing  proved  to  the  satisfaction  of  the  court  to  be 
genuine,  shall  be  permitted  to  be  made  by  witnesses  in  all 
trials  and  proceedings,  and  such  writings,  and  the  evidence 
of  witnesses  respecting  the  same,  may  be  submitted  to  the 
court  and  jury  as  evidence  of  the  genuineness,  or  otherwise, 
of  the  writing  in  dispute."  L 

Oregon. —  "Evidence  respecting  the  handwriting  may 
also  be  given,  by  a  comparison  made  by  a  witness  skilled  in- 
such  matters,  or  the  jury,  with  writings  admitted  or  treated 
as  genuine  by  the  party  against  whom  the  evidence  i» 
offered."2 

Rhode  Island. —  "  Comparison  of  a  disputed  writing  with 
any  writing  proved  to  the  satisfaction  of  the  judge  to  be 
genuine,  shall  be  permitted  to  be  made  by  witnesses,  and 
such  writings,  and  the  evidence  of  witnesses  respecting  the 
same,  may  be  submitted  to  the  court  and  jury  as  evidence 
of  the  genuineness,  or  otherwise,  of  the  writing  in  dis- 
pute."8 

Texas. —  "  It  is  competent  in  every  case  to  give  evidence 
of  handwriting  by  comparison,  made  by  experts  or  by  the 
jury ;  but  proof  by  comparison  only  shall  not  be  sufficient 
to  establish  the  handwriting  of  a  witness  who  denies  his  sig- 
nature under  oath."4 

§  138.  Comparison  of  Writings  in  the  absence  of  Stat- 
utory Provisions. —  Where  the  question  has  been  decided  in 
this  country  independently  of  any  statutory  regulation,  a 
marked  difference  of  opinion  has  existed  as  to  the  rule 
which  should  be  adopted. 

I.  According  to  one  theory  comparison  of  writings  placed  in 
juxtaposition  is  improper,  and  the  opinions  of  scientific  wit- 

1  Laws  of  1880,  ch.  36,  p.  141. 

2  General  Laws  (1843-1872),  p.  259,  §  755. 

3  Public  Statutes  (1882),  p.  588,  §  42. 

4  Revised  Statutes  (1879),  Code  of  Crim.  Procedure,  Art.  754.    This  is 
construed  so  as  to  admit  comparison  with  writings  admitted  to  be  genu- 
ine or  proved  to  be  so.    Heard  v.  State,  9  Texas  Ct.  of  App.  1, 19;  Phil- 
lips v.  State,  6  Texas  Ct.  of  App.  331;  Hatch  v.  State,  6  ib.  384;   Eborn 
v.  Zimmerman,  47  Tex.  503. 


EXPERT  TESTIMONY  IN  HANDWRITING.  193 

nesses  based  thereon  are  inadmissible.  It  is  the  adoption  of 
the  English  rule  as  finally  agreed  on  before  that  rule  was 
changed  by  the  act  of  parliament  already  referred  to.  This 
theory  has  been  adopted  in  the  Supreme  Court  of  the  United 
States,1  and  it  has  been  held  in  one  of  the  inferior  Federal 
Courts  that  the  statute  of  a  State  permitting  a  comparison  of 
writings  for  the  purpose  of  determining  the  genuineness  of 
handwriting,  has  no  effect  in  a  criminal  case  in  the  courts  of  the 
United  States.2  It  has  been  adopted  also  in  Alabama,3  Illinois,4 
Kentucky,5  Maryland,6  Pennsylvania,7  Texas,8  Virginia9  and 
Wisconsin.10  This  was  the  theory  which  was  adopted  in 
New  Jersey,11  and  in  Rhode  Island,12  by  the  courts  of  these 
respective  States  prior  to  the  enactment  of  the  statutory 
provisions  already  set  forth,  and  adhered  to  by  them  up 
to  the  time  of  such  enactment. 

There  are,  however,  certain  exceptions  to  the  rule.  For 
instance,  we  find  the  Supreme  Court  of  the  United  States 
declaring  that  "  the  general  rule  of  the  common  law,  disal- 
lowing a  comparison  of  handwriting  as  proof  of  a  signa- 
ture, has  exceptions  equally  as  well  settled  as  the  rule  itself. 
One  of  these  exceptions  is,  that  if  a  paper  admitted  to  be 
in  the  handwriting  of  the  party,  or  to  have  been  subscribed 
by  him,  is  in  evidence  for  some  other  purpose  in  the  cause, 

1  Strother  v.  Lucas,  G  Peters,  763;  Moore  v.  United  States,  91  U.  S. 
270. 

*  United  States  v.  Jones,  10  Federal  Reporter,  469. 

3  Little  v.  Beazley,  2  Ala.  703;  State  v.  Givens,  5  Ala.  747;  Kirksey  v. 
Kirksey,  41  Ala.  640. 

«  Jumpertz  v.  People,  21  111.  374;  Kernin  v.  Hill,  37  111.  209. 

5  Hawkins  v.  Grimes,  13  B.  Monr.  267;  McAlister  v.  McAlister,  7  B. 
Monr.  270. 

6  Miller  v.  Johnson,  27  Md.  36;  Tome  v.  Parkersburg,  etc.  R.  R.  Co., 
39  Md.  36. 

7  Aninick  v.  Mitchell,  82  Penn.  St.  211;  Haycock  v.  Greup,  57  Penn. 
St.  438;  Travis  v.  Brown,  43  Penn.  St.  9,  15;  Lodge  v.  Pipher.  11  S.  & 
R.  334;  Bank  of  Pennsylvania  v.  Jacobs,  1  Penn.  178. 

B  Handley  v.  Gandy,  28  Texas,  211. 

9  Rowt,  Adm'x.  v.  Kile's  Adin'r.,  1  Leigh,  216. 

10  State  v.  Miller,  47  Wis.  530;  Hazleton  v.  Union  Bank,  32  Wis.  34, 

11  West  v.  State,  22  N.  J.  Law,  241,  242. 

12  Kinney  v.  Flynn,  2  R.  I.  319. 

(13) 


194  EXPERT  TESTIMONY. 

the  signature  or  paper  in  question  may  be  compared  with  it 
foy  the  jury."  1 

§  139.  Comparison  of  Writings  in  the  Absence  of  Stat- 
utory Provisions  —  The  Subject  Continued. —  But  what  is 
more  to  our  purpose,  there  are  exceptions  to  the  rule,  which 
permit  the  testimony  of  experts  in  some  cases  to  be  received. 
And  perhaps  we  cannot  do  better  than  to  transcribe  the  lan- 
guage of  the  Supreme  Court  of  Alabama,  which  is  as  follows  : 
"  That  the  doctrine  as  to  experts,  as  applicable  to  signatures 
or  writings,  relates  to  ancient  writings,  which  are  not  proved 
by  their  antiquity ;  and  to  giving  their  opinion  as  to  the 
genuineness  of  a  signature  or  writing,  or  its  being  a  coun- 
terfeit, founded  on  a  knowledge  of  the  handwriting  of  the 
party  by  whom  it  is  said  to  be  written,  or  in  the  case  of 
bank  bills,  on  a  knowledge  of  the  genuineness  of  bills  of 
the  character  in  dispute,  and  some  skill  and  experience  that 
the  witness  may  possess  in  detecting  counterfeits,  not  pos- 
sessed by  the  mass  of  men  :  and,  perhaps,  to  an  opinion  as 
to  whether  a  signature  is  genuine  or  counterfeit,  without 
having  any  acquaintance  with  the  hand  in  dispute,  but  not 
by  comparison."2 

The  language  of  the  Supreme  Court  of  Pennsylvania  on 
the  same  genera]  subject  is  as  follows  : 

"  1st.  That  evidence  touching  the  genuineness  of  a  paper 
in  suit  may  be 'corroborated  by  a  comparison,  to  be  made 
by  the  jury,  between  that  paper  and  other  well  authenticated 
writings  of  the  same  party. 

2nd.  But  mere  experts  are  not  admissible  to  make  the 
comparison,  and  to  testify  their  conclusions  from  it. 

3d.  That  witnesses  having  knowledge  of  the  party's 
handwriting  are  competent  to  testify  as  to  the  paper  in  suit ; 
but  they,  no  more  than  experts,  are  to  make  comparison  of 
hands,  for  that  were  to  withdraw  from  the  jury  a  duty 
which  belongs  appropriately  to  them. 

4th.    That  test   documents    to    be  compared    should   be 


1  -Moore  v.  United  States,  91  U.  S.  270. 
Mvirksey  v.  Kirksey,  41  Ala.  626. 


EXPERT  TESTIMONY  IN  HANDWRITING.  195 

•established  by  the  most  satisfactory  evidence  before  being 
admitted  to  the  jury. 

5th.  That  experts  may  be  examined  to  prove  forgery  or 
simulated  writings,  and  to  give  the  conclusions  of  skill  in 
such  cases  as  have  been  mentioned,  and  their  like."  l 

Although  the  fourth  of  the  above  propositions  does  not 
relate  to  the  particular  subject  we  are  considering,  it  may 
be  remarked  in  passing  that  it  goes  farther  than  most  of  the 
•cases  warrant,  which  profess  to  adopt  the  English  rule,  and 
which  limit  the  comparison  to  writings  already  in  the  case, 
and  admitted  to  be  genuine.2  So  in  many  of  the  States 
which  receive  the  testimony  of  experts  based  on  comparison, 
the  comparison  is  limited  to  papers  already  in  evidence  and 
admitted  to  be  genuine.3 

§  140.  Comparison  of  Writings  in  the  Absence  of  Stat- 
utory Provisions  —  Comparison  by  Experts  with  Writings 
Admitted  to  be  Genuine. —  II.  According  to  a  second  the- 
ory a  comparison  of  writings  placed  in  juxtaposition  is 
proper,  the  writings  being  in  evidence  for  another  purpose 
and  admitted  to  be  genuine,  and  the  opinions  of  scientific 
witnesses  based  on  such  comparison  are  admissible  in  evi- 
dence. Such  is  the  theory  held  by  the  courts  of  Colorado,4 
Indiana,5  Kansas,6  Michigan,7  Missouri8  and  New  York  prior 


1  Travis  v.  Brown,  43  Penn.  St.  9, 17  and  18. 

2  See  Moore  v.  United  States,  91  U.  S.  270;  Bishop  v.  State,  30  Ala. 
34;  Bestor  v.  Roberts.  58  Ala.  331;  Miller  v.  Jones,  32  Ark.  337;  Brob- 
ston  v.  Cahill,  64  111.  358;   Hawkins  v.  Grimes,  13  B.  Monr.  (Ky.)  267; 
Clark  v.  Rhodes,  49  Tenn.  206;  Fogg  v.  Dennis,  3  Hum.  (Tenn.)  47;  Ha- 
.zleton  v.  Union  Bank,  32  Wis.  34;  State  v.  Miller,  47  Wis.  530;  Clay  v. 
Robinson,  7  W.  Va.  348;  Clay  v.  Alderson,  10  W.  Va.  49. 

3  See  the  cases  cited  in  succeeding  section. 

4  Miller  v.  Eicboltz,  5  Colorado,  243. 

4  Hazztird  v.  Yickery,  78  Ind.  64;  Forgery  v.  First  National  Bank,  66 
Ind.  123, 125 ;  Burdick  v.  Hunt,  43  Ind.  381 ;  Chance  v.  Indianapolis,  etc. 
€o.,  32  Ind.  472. 

6  Macomber  v.  Scott,  10  Kans.  335. 

7  Vinton  v.  Peck,  14  Mich.  287 ;  Matter  of  Alfred  Foster's  Will,  34  Mich. 
21 ;  First  National  Bank  v.  Robert,  41  Mich.  709. 

8  Corby,  Exr.  v.  Weddle,  57  Mo.  452;   State  v.  Clinton,  67  Mo.  380; 
State  v.  Tompkins,  71  Mo.  616;  Pourcelly  v.  Lewis,  8  Mo.  App.  593. 


196  EXPERT  TESTIMONY, 

to  legislative  enactment  already  noted,1  and  North  Carolina.2 
But  in  this  case,  as  in  all  others  where  there  is  a  comparison 
of  writings,  the  rule  excludes  a  comparison  by  ordinary  wit- 
nesses. If  the  comparison  by  juxtaposition  of  writings  is 
made  by  witnesses,  it  must  be  by  those  who  are  experts.3 
The  rule  being  that  a  witness  who  is  not  an  expert  must 
speak  from  his  knowledge  of  having  seen  the  party  write, 
or  from  authentic  papers  derived  in  the  course  of  business.* 
§  141.  Comparison  of  Writings  in  the  Absence  of  Stat- 
utory Provisions  —  Comparison  by  Experts  with  Writings 
Proved  or  Admitted  to  be  Genuine. —  According  to  the 
third  theory,  experts  are  permitted  to  express  an  opinion, 
based  not  merely  on  a  comparison  of  writings  conceded  to- 
be  genuine,  but  on  writings  the  genuineness  of  which  ha& 
been  proved  on  the  trial  for  the  express  purpose  of  com- 
parison. Such  testimony  has  been  received  in  Connecticut,* 
Maine,6  Massachusetts,7  Mississippi,8  New  Hampshire,9  and 
Ohio.10 

The  objections  to  the  introduction  of  specimens  of  hand- 
writing not  admitted  to  be  genuine  and  not  otherwise  in 
the  case,  are  succinctly  stated  by  the  Supreme  Court  of 
Kinsas,  and  may  be  repeated  here  in  this  connection : 
"The  principal,  if  not  the  only  objections  urged  against 
this  kind  of  evidence  are  as  follows :  1st.  The  writings 

1  Dubois  v.  Baker,  30  N.  Y.  355. 

2  Yates  v.  Yates,  76  N.  C.  142;  McLeod  v.  Bullard,  84  X.  C.  515. 

8  Forgery  v.  First  National  Bank,  66  Ind.  123, 125;  Chance  v.  Indian- 
apolis, etc.  Co.,  23  Ind.  472;  Woodman  v.  Dana,  52  Me.  9;  State  v. 
Owen,  73  Mo.  440;  First  National  Bank  of  Omaha  v.  Lierman,  5  Neb. 
247. 

4  See  Strother  v.  Lucas,  6  Peters,  763 ;  Eogers  v.  Bitter,  12  Wall.  317. 

5  Tyler  v.  Todd,  36  Conn.  222;  Lyon  v.  Lyman,  9  Conn.  59,  60. 

6  Sweetser  v.  Lowell,  33  Me.  446;  Woodman  v.  Dana,  52  Me.  9;   Page- 
v.  Romans,  14  Me.  478. 

7  Moody  v.  Rowell,  17  Pick.  490;   Richardson  v.  Newcomb,  21  Pick, 
315 ;  King  v.  Donahue,  110  Mass.  155, 156 ;  Martin  v.  Wallis,  1 1  Mass.  309r 
312 ;  Martia  v.  Maguire,  7  Gray,  177. 

8  Wilson  v.  Beauchamp,  50  Miss.  24. 

9  State  v.  Hastings,  53  N.  H.  452. 

10Pavey  v.  Pavey,  30  Ohio  St.  600;  Bragg  v.  Colwell.  19  Ohio  St.  412; 
Calkins  v.  State,  14  Ohio  St.  222;  Hicks  v.  Person,  19  Ohio,  426. 


EXPERT  TESTIMONY  IN  HANDWRITING.  197 

offered  in  evidence  as  specimens,  may  be  manufactured 
for  the  occasion.  2nd.  Fraud  may  be  practiced  in  the 
selection  of  the  writings.  3d.  '  The  other  party  may  be 
surprised  ;  he  may  not  know  what  documents  are  to  be 
produced,  and  therefore  he  may  not  be  prepared  to  meet 
the  inferences  sought  to  be  drawn  from  them.  4th.  The 
handwriting  of  a  person  may  be  changed  by  age,  health, 
habits,  state  of  mind,  position,  haste,  penmanship,  and 
writing  materials.  5th.  The  genuineness  of  the  specimens 
of  handwriting  offered  in  evidence  may  be  contested,  and 
others  successively  introduced,  to  the  infinite  multiplication 
of  collateral  issues,  and  the  subversion  of  justice.  6th. 
Juries  are  too  illiterate,  and  are  not  competent  to  judge  of 
this  kind  of  evidence."  l 

§  142.  Proof  of  the  Genuineness  of  the  Writing  Of- 
fered for  Comparison. —  In  the  English  statute  it  is  ex- 
pressly provided  that  the  writing  offered  as  a  standard,  if 
not  admitted  to  be  genuine,  must  be  proved  genuine  to  the 
satisfaction  of  the  court.  And  so  it  is  provided  in  the  stat- 
ute of  California,  of  New  Jersey,  of  New  York  and  of 
Rhode  Island.  But  the  statutes  of  the  other  States  contain 
no  such  provision.  The  question  is  then  presented  whether 
in  such  cases  the  proof  of  the  genuineness  of  the  instru- 
ment is  addressed  to  the  court  or  the  jury.  In  New  Hamp- 
shire it  seems  the  question  rests  solely  with  the  jury,  and  if 
they  determine  that  the  proof  is  insufficient,  it  becomes 
their  duty  to  lay  the  writing,  and  all  the  evidence  of  the  ex- 
perts based  on  its  genuineness,  entirely  out  of  the  case.2 
But  elsewhere  the  courts  have  held  such  proof  to  be  ad- 
dressed in  the  first  instance  to  the  court,3  yet  the  fact  that  the 
court  has  adjudged  the  papers  genuine  does  not  debar  the  jury 
from  ultimately  determining  the  question  for  themselves.4 

And  the  general  rule  is  that  the  proof  of  the  genuineness 
of  the  instrument  thus  offered  must  be  positive.  It  should 

1  Macomber  v.  Scott,  10  Kans.  339. 

2  State  v.  Hastings,  53  X.  H.  452,  4G1. 

3  Bragg  v.  Colwell,  19  Ohio  St.  412;  State  v.  WnrJ,  39  Vt.  225. 

4  State  v.  Ward,  supra. 


198  EXPERT  TESTIMONY  , 

be  proved  either  by  the  admission  of  the  party  when  the 
standard  is  not  offered  by  himself,  or  else  by  the  testimony 
of  persons  who  testify  directly  and  positively  to  having 
seen  the  party  write  the  paper.1  This  was  the  rule,  too,  in 
the  English  ecclesiastical  courts,  where  the  maxim  was  : 
Testes  qui  poterint  deponere,  quod  viderunt  testatorem  sub- 
scribentem  hujus  modi  scriptis,  etc.2 

As  the  Supreme  Court  of  Massachusetts  -has  expressed  it, 
the  genuineness  of  a  writing  to  be  used  as  a  standard  of 
comparison,  "  must  be  shown  beyond  a  doubt."  3 

And  the  court  in  the  case  last  cited  held  that  it  could  not 
be  shown  by  producing  a  paper  which  had  been  witnessed, 
and  then  proving  the  handwriting  of  the  subscribing  wit- 
ness, upon  due  proof  being  made  that  such  witness  resided 
out  of  the  State.  So  the  same  court  in  a  subsequent  case 
has  held  that  letters  received  from  the  testator  in  answer  to- 
letters  to  him,  could  not  be  received  as  standards.4  Where 
a  receipt  was  offered  as  a  standard,  and  the  witness  testified 
that  the  defendant  gave  him  a  receipt  that  looked  very  sim- 
ilar to  the  one  offered,  but  could  not  positively  say  that  it 
was  the  identical  one,  the  Supreme  Court  of  Ohio  held  the 
proof  too  uncertain  to  admit  of  the  reception  of  the  paper.5 

§  143.  Expert  should  have  Before  him  in  Court  the 
Writings  Compared. —  The  rule  is  that  an  expert  in  hand- 
writing, when  speaking  as  a  witness  only  from  a  compari- 
son, should  have  before  him  in  court  the  writings  com- 
pared.6 The  reason  being  that  their  presence  is  essential  to 
an  intelligent  examination  in  chief,  as  well  as  to  an  intelli- 
gent cross-examination  ;  nor  can  there  be  any  fair  means  of 

!Hyde  v.  Woolfok,  1  Iowa,  159;  Pavey  v.  Pavey,  30  Ohio  St.  600; 
Calkins  v.  State,  14  Ohio  St.  222,  228;  Bragg  v.  Colwell,  19  Ohio  412; 
Eborn  v.  Zimpleman,  47  Texas,  503,  518. 

2  Oughton's  Ordo  Judiciorum,  tit.  225;  De  Comparatione  Litterarum, 
§  3;  Beaumont  v.  Perkins,  1  Phillimore,  78. 

3  Martin  v.  Maguire,  7  Gray,  177.    And  see  Baker  v.  Haines,  6  Whar- 
ton  (Penn.)  291 ;  De  Pue  v.  Place,  7  Penn.  St.  429. 

4  McKeone  v.  Barnes,  108  Mass.  344. 
6  Pavey  T.  Pavey,  30  Ohio  St.  600. 

6  Hynes  v.  McDermott,  82  X.  Y.  41 ;  Woodman  v.  Dana,  52  Me.  9. 


EXPERT  TESTIMONY  IN  HANDWRITING.  199 

meeting  the  testimony  of  the  witness  by  that  of  other  wit- 
nesses, unless  the  writings  upon  which  the  opinion  of  the 
expert  is  based  are  in  court  to  be  presented  to  other  experts 
for  their  opinion.  But  where  the  original  writing  is  lost, 
and  the  loss  has  been  clearly  proved,  the  opinion  of  an  ex- 
pert has  been  received  as  to  the  genuineness  of  the  signa- 
ture to  the  lost  instrument,  he  having  examined  the  signa- 
ture prior  to  its  loss,  and  compared  his  recollection  of  such 
signature  with  the  admitted  genuine  signatures  of  the  same 
person,  on  papers  already  in  the  case.1  And  an  expert  has 
been  allowed  to  testify  that  entries  upon  hotel  registers, 
which  he  had  seen  and  examined,  were  in  the  handwriting 
of  the  person  who  wrote  certain  other  signatures,  which 
were  produced  and  proved  or  admitted  to  be  genuine,  al- 
though the  entries  were  not  before  the  jury,  the  registers 
having  been  destroyed,  by  the  person  whose  signature  was 
in  question,  for  the  purpose  of  suppressing  the  evidence.2 
So  where  the  State,  upon  an  indictment  for  forgery,  was 
unable  to  produce  the  check  alleged  to  have  been  forged  by 
the  prisoner,  an  expert,  called  by  the  State,  and  who  had 
seen  the  alleged  forged  check  several  months  previously, 
was  permitted  to  testify  as  to  the  genuineness  of  the  signa- 
ture, a  genuine  signature  of  the  accused  having  been  shown 
on  the  trial.3 

§  144.  The  Writing:  Compared  should  be  the  Original 
and  not  a  Photographic  Copy. —  In  a  late  case  in  New  York 
the  Court  of  Appeals  refused  to  permit  the  comparison  of  a 
signature  in  dispute  with  photographic  copies  of  other  writ- 
ings, for  the  purpose  of  getting  the  opinion  of  an  expert  as 
to  whether  a  signature  was  real  or  feigned.1  But  stress 
was  laid  upon  the  fact  that  the  originals  from  which  the 
copies  were  made  were  not  brought  into  court,  and  could 
not  be  shown  to  other  witnesses.  And  no  proof  had  been 
presented  as  to  the  manner  and  exactness  of  the  photo- 

1  Abbott  v.  Coleman,  21  Kan.«.  250. 

2  State  v.  Shinborn,  40  N.  H.  407. 
8  Koons  v.  State,  30  Ohio  St.  195. 

4  llynes  v.  McDermott,  82  X..  Y.  41. 


200  EXPERT  TESTIMONY. 

graphic  method  used.  "We  may  recognize,"  said  the 
court,  "that  the  photographic  process  is  ruled  by  general 
laws  that  are  uniform  in  their  operation,  and  that  almost 
Avithout  exception  a  likeness  is  brought  forth  of  the  object 
set  before  the  camera.  Still  somewhat  for  exact  likeness 
will  depend  upon  the  adjustment  of  the  machinery,  upon 
the  atmospheric  conditions,  and  the  skill  of  the  manipula- 
tor. And  in  so  delicate  a  matter  as  the  reaching  of  judicial 
results  by  the  comparison  of  writings  through  the  testimony 
of  experts,  it  ought  to  be  required  that  the  witness  should 
exercise  his  acumen  upon  the  thing  itself  which  is  to  be  the 
basis  of  his  judgment ;  and  still  more,  that  the  thing  itself 
should  be  at  hand,  to  be  put  under  the  eye  of  other  wit- 
nesses for  the  trial  upon  it  of  their  skill.  The  certainty  of 
expert  testimony  in  these  cases  is  not  so  well  assured  as 
that  we  can  afford  to  let  in  the  errors  or  differences  in 
copying,  though  it  be  done  by  howsoever  a  scientific  pro- 
cess." The  objections  to  the  use  of  photographic  copies  in 
such  cases  were  very  ably  stated  in  a  decision  excluding  the 
opinions  based  on  such  evidence,  in  a  case  decided  some  ten 
years  before  in  the  Surrogate's  Court  of  the  county  of  New 
York.  It  was  said  that  such  evidence  would  raise  many  col- 
lateral issues,  as,  for  instance,  the  correctness  of  the  lens, 
the  state  of  the  weather,  the  skill  of  the  operator,  the  color 
of  the  impression,  the  purity  of  the  chemicals,  the  accuracy 
of  the  focusing,  the  angle  at  which  the  original  to  be 
copied  was  inclined  to  the  sensitive  plate,  etc.  **  When  we 
reflect  that  by  placing  the  original  to  be  copied  obliquely  to 
the  sensitive  plate,  the  portion  nearest  to  the  plate  may  be 
distorted  by  being  enlarged,  and  that  the  portion  furthest 
from  the  plate  must  be  correspondingly  decreased,  whilst 
the  slightest  bulging  of  the  paper  upon  which  the  signature 
is  printed  may  make  a  part  blurred,  and  not  sharply  defined, 
we  can  form  some  idea  of  the  fallacies  to  which  this  subject 
is  liable.  In  what  manner  can  photography 

make  the  signature,  in  any  practical  sense,  more  apparent 
to  the  observer  than  the  signature  itself?  The  operator 


EXPERT  TESTIMONY  IN  HANDWRITING.  201 

may,  moreover,  through  fraud  or  skill,  make  some  particu- 
lar lines  in  the  reproduced  signature  stand  forth  more  prom- 
inently than  in  the  original  signature.  If  the  photograph 
be  an  absolutely  perfect  reproduction  of  the  original  signa- 
ture—  the  former  being  the  same  as  the  latter  —  there  can 
be  no  necessity  for  the  study  of  the  reproduction.  If, 
through  the  fraud  or  skill  of  the  operator,  some  lines  be 
brought  out  with  undue  prominence,  then  it  should  not  be 
considered  proper  evidence  on  which  to  base  an  opinion,  for 
it  is  not  a  correct  reproduction."  1 

The  right  to  make  a  comparison  with  photographic  copies 
of  handwriting,  has  also  been  denied  in  Maryland,2  but  the 
force  of  these  cases  is  weakened  by  the  fact  that  a  compar- 
ison of  hands  is  not  permitted  in  that  State,  the  old  English 
rule  being  still  adhered  to.  But  the  question  was  fairly 
raised  in  Texas  in  Eborn  v.  Zimpelman?  where  an  attempt 
was  made  to  introduce  in  evidence  the  opinion  of  a  witness, 
living  in  another  State,  as  to  the  genuineness  of  a  disputed 
handwriting,  the  opinion  being  based  on  a  photographic 
copy  of  the  instrument  in  dispute,  attached  to  the  interrog- 
atories. In  support  of  the  admissibility  of  the  evidence,  it 
was  urged  that  the  court  should  take  judicial  notice  that  the 
photographic  process  secured  a  mathematically  exact  repro- 
duction of  the  original,  and  that  therefore,  evidence  as  to 
the  handwriting  of  such  a  copy,  was  as  satisfactory  as 
though  it  referred  to  the  original.  The  conclusion  reached 
by  the  court  was  that  photographic  copies  of  instruments 
sued  on,  could  only  be  used  as  secondary  evidence,  and  re- 
jected the  testimony  upon  the  ground  that  no  foundation 
had  been  laid  for  it. 

The  Supreme  Court  of  Michigan,  speaking  of  this  kind 
of  evidence,  said  in  the  Matter  of  Alfred  Foster' 's  Win,*  de- 
cided in  187G :  "  If  the  court  had  permitted  photographic 
copies  of  the  will  to  be  given  to  the  jury,  with  such  precau- 

1  Taylor  Will  Case,  10  Abb.  Pr.  (K.  S.)  300.  per  Surrogate  Hatchings. 

2  Miller  v.  Johnson.  27  Md.  36;  Tome  v.  Parkersburg.  39  Md.  36. 

3  47  Texas,  503. 
«  34  Mich.  23. 


202  EXPERT  TESTIMONY. 

tions  as  to  secure  their  identity  and  correctness,  it  might  not, 
perhaps,  have  been  error.  Nevertheless,  it  is  not  always 
true  that  every  photographic  copy  would  be  safe  on  any 
inquiry  requiring  minute  accuracy.  Few  copies  can  be  so- 
satisfactory  as  a  good  photograph,  but  all  artists  are  not 
competent  to  make  such  pictures  on  a  large  scale,  and  all 
photographs  are  not  absolutely  faithful  resemblances.  It 
is  quite  possible  to  tamper  with  them,  and  an  impression 
which  is  at  all  blurred  would  be  very  apt  to  mislead  on 
questions  of  handwriting  where  forgery  is  claimed.  Whether 
it  would  or  would  not  be  permissible  to  allow  such  docu- 
ments to  be  used,  their  use  can  never  be  compulsory.  The 
original,  and  not  the  copy,  is  what  the  jury  must  act  upon, 
and  no  device  can  be  properly  allowed  to  supersede  it. 
Copies  of  any  kind  are  merely  secondary  evidence,  and  in 
this  case  they  were  intended  to  be  used  as  equivalent  to 
primary  evidence  in  determining  the  genuineness  of  the  pri- 
mary document." 

§  145.  Comparison  with  Photographic  Copies  Allowed, 
when. —  In  a  case  where  the  original  papers  were  on  file  in 
the  War  Department,  and  could  not  be  removed  without 
public  detriment  and  inconvenience,  Mr.  Justice  BRADLEY 
held  that  photographic  copies  could  be  received,  as  being 
the  best  evidence  the  case  admitted  of.1  A  comparison  with 
photographic  copies  of  handwriting  has  been  held  to  be 
proper  in  Massachusetts,  where  the  copies  had  first  been 
verified  by  the  oath  of  the  photographer  as  being  accurate 
in  all  respects,  excepting  only  in  relation  to  size  and  color.2 
It  was  thought  to  be  not  dissimilar  to  an  examination  of  the 
writing  with  a  magnifying  glass.  "  Under  proper  precau- 
tions," said  the  court,  "  in  relation  to  the  preliminary  proof 
as  to  the  exactness  and  accuracy  of  the  copies  produced  by 
the  art  of  the  photographer,  we  are  unable  to  perceive  any 
valid  objection  to  the  use  of  such  prepared  representations 


1  Leathers  v.  Salvor  Wrecking  Co.,  2  Wood,  680,  682. 

2  Marcy  v.  Barnes,  16  Gray,  161.    The  photograph  ought  to  be  verified 
by  the  oath  of  the  photographer.    Holleubeck  v.  Rowly,  8  Allen,  4Z3. 


EXPERT  TESTIMONY  IN  HANDWRITING.  20o 

of  original  and  genuine  signatures  as  evidence  competent 
to  be  exhibited  and  weighed  by  the  jury." 

§  146.  Writings  Admissible  for  Comparison  in  Orthog- 
raphy.—  Although  prior  to  the  act  of  1854  writings  could 
not  be  introduced  in  evidence  in  the  English  courts,  for  the 
purpose  of  showing  a  similarity  in  the  formation  of  letters,, 
or  figures  and  modes  of  writing,  yet  it  was  held  they  could 
be  introduced  for  the  purpose  of  proving  a  particular  mode 
of  spelling.  For  such  a  purpose  specimens  of  the  party's 
handwriting  containing  that  particular  orthography  were  ad- 
missible.1 A  peculiar  case  of  this  kind  occurred  at  the 
Greenwich  County  Court.  The  party  denied  most  positively 
that  a  certain  receipt  was  in  his  handwriting.  It  read, 
"  Received  the  Hole  of  the  above."  He  was  asked  to  write 
a  sentence  containing  the  word  "  whole."  He  took  pains 
to  disguise  his  hand,  but  adopted  the  above  phonetic  style 
of  spelling,  even  retaining  the  capital  H.2  But  in  Wiscon- 
sin a  different  view  seems  to  have  been  taken  of  the  sub- 
ject, although  the  preceding  cases  were  not  brought  to  the 
attention  of  the  court.  In  that  case,  which  was  an  indict- 
ment for  arson,  the  prosecution  desired  to  show  that  a  letter,, 
containing  threats  of  arson,  was  written  by  the  prisoner. 
It  contained  words  of  peculiar  form,  style  and  orthography, 
and  was  repeated  to  him  orally  and  verbally  by  the  police 
officers  at  the  station,  who  requested  him  to  write  as  they 
read.  The  copy  thus  made  was  found  to  be  an  exact  facf 
simile  of  the  original  in  the  peculiarities  above  noted.  The 
court  excluded  it  on  the  ground  that  a  comparison  of  hands 
was  not  allowable.  The  letter,  however,  might  perhaps  have 
been  inadmissible  on  other  grounds,  as  that  it  was  compelling 
the  prisoner  to  give  evidence  against  himself ;  but  this  was 
•  not' referred  to  by  the  court. 

§  147.  Comparison  with  Writings  made  on  the  Trial. — 
A  party  cannot  be  compelled  on  cross-examination,  to  write 
his  name  in  court  for  the  purpose  of  having  it  compared 


1  Brookes  v.  Tichborne,  5  Exch.  929. 

2  Taylor  on  Evidence,  1552.  note  «. 


204  EXPERT  TESTIMONY. 

with  the  disputed  writing.1  But  if  he  writes  his  name  as 
requested,  it  has  been  held  that  it  may  be  used  as  a  standard 
of  comparison,  for  the  purpose  of  contradicting  him.2 
Hence  in  a  recent  case  in  Nebraska,  where  the  defend- 
ant denied  the  genuineness  of  a  promissory  note,  and 
called  his  sou  as  a  witness,  who  testified  in  chief  that  cer- 
tain words  in  the  note  which  his  father  actually  gave  were 
written  by  himself,  and  on  cross-examination  was  requested 
to  write  the  same  words  in  the  presence  of  the  jury,  it  was 
held  that  such  writing  could  be  used  for  purposes  of  com- 
parison, the  party  conducting  the  examination  taking  the 
risk  whether  the  writing  was  dissimilar  or  not.3  But  a 
party  is  not  entitled  to  write  his  signature  in  the  presence 
of  the  jury  for  purposes  of  comparison  with  a  signature 
puporting  to  be  his,  the  genuineness  of  which  he  denies.4 
So  it  has  been  held  error  to  permit  a  witness,  who  confesses 
to  having  written  the  forged  instrument  tinder  the  direction 
and  request  of  the  prisoner,  to  write  a  similar  instrument 
in  the  presence  of  the  court  and  jury,  for  purposes  of  com- 
parison.6 

§  148.  Comparison  of  AVritings — Testing  Accuracy  of 
Expert  on  Cross-Examination. — It  is  not  competent,  on 
cross-examination  of  an  expert  in  handwriting,  who  has 
testified  to  the  genuineness  of  a  signature,  to  submit  to  him 
a  disputed  signature  for  the  purpose  of  testing  his  accuracy.6 
That  it  is  not  submitted  for  purposes  of  comparison,  but 
simply  to  test  the  accuracy  of  the  witness,  renders  it  none 
the  less  inadmissible.7  And  a  genuine  signature  is  as  inad- 
missible for  this  purpose  as  a  spurious  one  would  be.8 

1  First  Xational  Bank  of  Houghton  v.  Robert,  41  Mich.  709. 

2  Cobbett  v.  Kilrninster,  4  Fos.  &  Fin.  490;  Doe  v.  Wilson,  10  Moore, 
P.  C.  502,  530;  Chandler  v.  LeBarron,  45  Me.  534. 

3  Huff  v.  Xims,  11  Neb.  364. 

4  King  v.  Donahue,  110  Mass.  155. 
4  Williams  v.  State,  61  Ala.  33. 

« Tyler  v.  Todd,  36  Conn.  222;  Bacon  v.  Williams,  13  Gray,  525; 
Howard  v.  Patrick.  43  Mich.  128. 

7  Van  \Vyck  v.  Mclntosh,  14  N.  Y.  439;  Bank  of  Commonwealth  v. 
Mudgett,  44  X.  Y.  514. 

s  Fogg  v.  Dennis,  3  Humph.  (Tenn.)  47. 


EXPERT  TESTIMONY  IX  HANDWRITING.  205 

§  149.  Detection  of  Counterfeit  Bank  Notes.  —  Books 
known  as  bank  note  detectors,  are  not  competent  evidence 
as  to  the  genuineness  or  worthlessness  of  bank  bills,  neither 
is  the  testimony  of  a  witness  who  does  not  profess  to  be  an 
expert.1  One  who  is  not  acquainted  with  the  handwriting 
of  the  president  or  cashier  of  the  hank,  but  who  has  studied 
and  learned  the  system  by  which  it  is  believed  counterfeit 
bank  notes  can  be  detected,  and  who  has  such  knowledge 
of  the  marks  and  devices  used  in  etching  and  engraving  as 
enables  him  to  detect  gross  counterfeits,  is  competent  to- 
testify  as  an  expert  concerning  the  genuineness  of  bank 
notes.2  So  where  a  witness  has  been  in  the  habit  of 
receiving  and  paying  out  notes  of  the  bank,  and  believes 
that  he  has  thereby  become  acquainted  with  the  handwriting 
of  its  president  and  cashier,  he  is  considered  qualified  by  his 
experience,  although  he  has  never  seen  these  officers  write, 
to  testify  as  to  the  genuineness  of  notes  purporting  to  have 
been  issued  by  the  bank.3  One  who  is  a  bank  officer, 
engaged  in  banking,  and  a  judge  of  counterfeit  money,  is 
competent  to  give  his  opinion  as  an  expert  as  to  the  spurious- 
ness  of  a  bank  note.4  A  cashier  who  has  received  and  passed 
a  great  number  of  the  notes  of  the  bank  in  question,  and. 
believes  he  can  distinguish  between  a  genuine  and  counter- 
feit note,  is  competent  to  give  his  opinion  as  an  expert.5 
The  same  principle  governs  in  the  case  of  tellers.6  But 
bank  officers  are  not  the  only  witnesses  who  are  qualified  to 
testify  in  such  cases.  And  it  has  been  said  that  the  opinion 
of  any  one,  who  is  familiar  with  the  notes  of  the  bank  in 
question,  may  be  received.7  Hence  the  testimony  of  mer- 

1  Payson  v.  Everett,  12  Minn.  216. 

2  Jones  v.  Finch,  37  Miss.  468. 

3  Allen  v.  State,  3  Humph.  (Tenn.)  367;  Commonwealth  v.  Carey,  2 
Pick.  (Mass.)  47;  State  v.  Candler,  3  Hawk's  Law  &  Eq.  (N.  C.)  393; 
Sasser  v.  State,  13  Ohio,  453;  Hess  v.  Ohio,  5  Ohio,  6;  Kirksey  v.  Kirk- 
sey,  41  Ala.  626;  State  v.  Allen,  1  Hawk's  L.  &  Eq.  (X.  C.)  6. 

4  May  v.  Dorsett,  30  Ga.  116;  State  v.  Hooper,  2  Bailey  (S.  C.)  Law.. 
37;  Atwood  v.  Cornwall,  28  Mich.  339. 

5  State  v.  Harris,  5  Ired.  (X.  C.)  Law,  287. 

6  Hess  v.  Ohio,  5  Ohio,  6 ;  Kirksey  v.  Kirksey,  41  Ala.  626. 

7  State  v.  Hooper,  2  Bailey,  (S.  C.  Law,  37;  State  v.  Tutt,  Ib.  44. 


206  EXPERT  TESTIMONY. 

•chants,  brokers  and  others,  who  are  in  the  habit  of  receiv- 
ing, scrutinizing  and  paying  out  the  notes  of  the  bank,  is 
received  as  coming  from  witnesses  whose  experience  renders 
them  qualified  to  express  an  opinion.1  In  New  Hampshire 
it  is  said  that  a-  bill  may  be  proved  to  be  a  counterfeit  by 
persons  who  know  the  signatures  of  the  president  and 
cashier,  by  having  seen  the  bills  in  circulation.2  Experts 
are  allowed  to  testify  as  to  the  false  character  of  bank  bills, 
without  iirst  proving  that  the  bank  purporting  to  issue  them 
had  an  existence,3  or  that  it  had  issued  genuine  bills  of 
which  those  in  question  might  be  counterfeits.4  In  the  case 
of  bills  of  exchange,  it  has  been  held  that  one  who  had 
presented  to  the  firm  many  notes  which  had  been  paid  by 
them,  was  qualified  by  his  experience  to  testify,  that,  in  his 
opinion,  the  handwriting  of  the  bill  in  question  was  the 
same  as  that  upon  the  bills  which  the  firm  had  paid.5  Al- 
though it  cannot  be  considered  as  laying  down  a  correct 
principle  of  law,  it  is  worthy  of  note  that  in  an  early  case 
in  the  New  York  court  of  sessions,  it  was  ruled  that  experts 
should  not  be  allowed  to  swear  as  to  the  genuiness  of  bank 
bills,  if  witnesses  could  be  produced  who  had  seen  the 
president  and  cashier  write.6 

§  150.  Regulation  of  such  Evidence  by  Statutory  Pro- 
vision.—  In  some  of  the  States  statutory  provision  has  been 
made  as  to  the  reception  of  evidence  in  the  cases  considered 
in  the  preceding  section.  Such  provision  has  been  made  in 
Illinois,  Indiana,  Kansas,  Pennsylvania,  and  perhaps  else- 
where. 

Illinois. —  "Persons  of  skill  shall  be  competent  to  testify 
as  to  the  genuineness  of  any  bill,  note  or  other  instrument 
alleged  to  be  forged  or  counterfeited."  7 

1  State  v.  Cheek,  13  Ired.  (N.  C.)  114;  Watsou  v.  Cresap,  1  B.  Monr. 
<Ky.)  196. 

2  State  v.  Carr,  5  X.  H.  369,  373. 

3  Joiies  v.  State,  11  Ind.  357. 

4  Crawford  v.  State,  2  Ind.  132. 

5  Gordon  v.  Price,  10  Ired.  (X.  C.)  385. 

6  People  v.  Badger,  1  Wheeler,  Cr.  Cas.  543. 

7  Revised  Statutes  (1880),  ch.  38.  §  109. 


EXPERT  TESTIMONY  IN  HANDWRITING.  207 

Indiana. —  "  Persons  of  skill  may  be  called  to  prove  the 
genuineness  of  a  note,  bill,  draft,  or  certificate  of  deposit, 
but  three  witnesses,  at  least,  shall  be  required  to  prove  the 
fact,  except  in  the  case  of  a  larceny  thereof,  the  simple  ev- 
idence of  the  cashier  of  a  bank  purporting  to  have  issued 
the  same  may  be  received  as  sufficient."  1 

Kansas. —  "  Persons  of  skill  or  experts  may  be  called  to 
testify  as  to  the  genuineness  of  a  note,  bill,  draft,  certificate 
of  deposit,  or  other  writing,  but  three  witnesses,  at  least, 
shall  be  required  to  prove  the  fact,  except  in  the  case  of  a 
larceny  thereof,  the  single  evidence  of  the  president,  cashier, 
or  teller  of  the  bank  purporting  to  have  issued  the  same,  or 
the  maker  thereof,  may  be  received  as  sufficient."  a 

Pennsylvania. —  "  Upon  the  trial  of  any  indictment  for 
making,  or  passing  and  uttering  any  false,  forged  or  coun- 
terfeit coin,  or  bank  note,  the  court  may  receive  in  evidence 
to  establish  either  the  genuineness  or  falsity  of  such  coin  or 
note,  the  oaths  or  affirmations  of  witnesses  who  may  by 
experience  and  habit  have  become  expert  in  judging  of  the 
genuineness  or  otherwise  of  such  coin  or  paper,  and  such  tes- 
timony may  be  submitted  to  the  jury  without  first  requiring 
proof  of  the  handwriting  or  the  other  tests  of  genuineness, 
as  the  -case  may  be,  which  have  been  heretofore  required 
bylaw."3 

In  Maine  it  is  provided  that  in  the  case  of  forged  bank 
notes,  etc.,  if  the  president  or  cashier  reside  out  of  the 
State,  or  more  than  forty  miles  from  the  place  of  trial,  the 
opinions  of  other  witnesses  may  be  received.4  And  in 
Khocle  Island  it  is  provided  that  the  opinions  of  skilled  per- 
sons may  be  received  in  such  cases,  provided  the  persons 
whose  names  are  forged  are  out  of  the  State,  or  reside  thirty 
miles  distant  from  the  place  of  trial.5 

1  2  Revised  Statutes  (1876),  p.  396,  §  01. 

2  General  Statutes  (1868).  p.  854.  §  216. 

3  1  Brightly ?s  Purd.  Dig.  (1700-1872),  p.  631,  §  63. 

4  Revised  Statutes.  (1871).  p.  836,  §  8. 

5  Public  Statutes  (1882),  p.  580,  §  44. 


208  EXPERT  TESTIMONY. 


CHAPTER  VIII. 


VALUE. 
SECTION. 

151.  Value  as  a  Subject  for  thq  Testimony  of  Experts. 

152.  The  Amount  of  Damages. 

153.  Opinions  of  Non-Professional  Witnesses. 

154.  Qualifications  of  the  Expert  in  Values. 

155."  Not  Necessary  that  Expert  should  see  the  Property. 

156.  Time  of  Examination  of  Property  by  Expert. 

157.  Competency  in  Particular  Cases. 

158.  Competency  in  Particular  Cases— The  Subject  Continued. 

159.  Value  of  Legal  Services. 

160.  Value  of  Services  Rendered  by  Physicians  and  Nurses. 

161.  Value  of  Services  in  other  Callings. 

162.  Opinions  as  to  Value  of  Eeal  Estate. 

163.  Value  of  Annuities. 

164.  Value  of  Foreign  Currency  and  Negotiable  Securities. 
1G5.  Opinions  of  Merchants  and  Brokers. 

§  151.  Value  as  a  Subject  for  the  Testimony  of  Experts. 

— The  opinions  of  experts  are  received  in  evidence  on  the 
question  of  value.1  "  It  is  every  day's  practice,"  said  Mr. 
Chief  Justice  NELSON  of  New  York,  "to  take  the  opinion  of 
witnesses  as  to  the  value  of  property — persons  who  are  sup- 
posed to  be  conversant  with  the  particular  article  in  ques- 
tion, and  of  its  value  in  the  market:  as  a  farmer,  or  dealer 

1  Brown  v.  Providence  &  Springfield  R.  E.  Co..  12  R.  I.  238;  Buffum 
v.  N.  Y.  Cent.  etc.  R.  R.  Co.,  4  R.  I.  221 ;  Forbes  v.  Howard,  4  R.  I.  366 ; 
Cant-ling  v.  Hannibal  etc.  R.  R.  Co.,  54  Mo.  385;  Hough  v.  Cook,  69  111. 
381;  Shaw  v.  City  of  Chariest  own,  2  Gray  (Mass.),  109;  Edmonds  v. 
City  of  Boston,  108  Mass.  535;  Dickenson  v.  Fitchburg,  13  Gray  (Mass.), 
546;  Cobb  v.  City  of  Boston,  109  Mass.  438;  Burger  v.  Northern  Pacific 
R.  R.  Co.,  22  Minn.  343,  347;  Crawford  v.  Wolf,  29  Iowa,  568;  Tebbetts- 
v.  Haskins,  16  Me.  283,  289. 


VALUE.  209 

in,  or  person  conversant  with  the  article,  as  to  the  value  of 
lands,  cattle,  horses,  produce,  etc.  These  cases  all  stand 
upon  the  general  ground  of  peculiar  skill  and  judgment  in 
the  matters  about  which  opinions  are  sought."  l  This  rule 
however,  did  not  commend  itself  to  the  courts  of  New 
Hampshire,  and  the  practice  there  was  to  exclude  the  opin- 
ions of  witnesses  on  questions  of  value,  in  cases  where  it 
was  customary  in  the  courts  of  other  States  to  unhesita- 
tingly receive  them,  provided  only,  the  witnesses  were  duly 
qualified  to  testify  in  relation  to  the  subject  of  inquiry. 
For  example,  the  practice  in  that  State  was  to  exclude  the 
opinions  of  witnesses  as  to  the  value  of  real  estate,  irrespec- 
tive of  any  question  as  to  their  qualifications.2  The  exclusion 
was  based  on  the  assumption  that  the  ordinary  value  of 
land  of  a  particular  description,  within  the  county,  was  a 
matter  of  public  notoriety,  and  was,  therefore,  such  a  ques- 
tion as  the  jury,  required  by  statute  to  be  composed  of  free- 
holders, would  be  fully  conversant  with,  and  abundantly 
able  to  decide.  So  in  the  same  State  the  courts  have  held 
that  there  was  nothing  in  the  study,  or  ordinary  observation 
of  horses,  which  entitled  a  witness  to  be  introduced  as  an 
expert  as  to  their  value.3  This  practice  of  excluding  opinions 
in  such  cases,  was  found  not  to  work  well,  and  was  embar- 
rassing to  the  jury,  as  well  as  prejudicial  to  the  rights  of 
the  parties  interested  in  the  litigation.  The  legislature 
accordingly  interfered,  and  provided  as  follows:  "The 
opinions  of  witnesses  as  to  the  value  of  any  real  estate, 
goods  or  chattels,  may  be  received  as  evidence  thereof,  when 
it  appears  to  the  court  that  they  are  qualified  to  judge  of 
such  value."  4 

The  rule  that  the  opinions  of  witnesses  are  admissible  on 
questions' of  value,  is,  of  course,  inapplicable  in  those  cases 

1  Lincoln  v.  Saratoga  etc.  R.  R.  Co.,  23  Wend.  425,  433. 

2  Rochester  v.  Chester,  3  X.  H.  364;  Peterborough  v.  Jaffrey,  6  X.  H. 
4G2;    Hoitt  v.  Moulton,  1  Foster,  586;   Marshall  v.  Columbian  Mutual 
Fire  Ins.  Co.,  7  Foster,  157. 

8  Robertson  v.  Stark,  15  X.  H.  109;  Low  v.  Connecticut  etc.  R.  R.  Co., 
45  X.  H.  S70,  381. 

4  General  Laws  of  Xew  Hampshire  (1878),  p.  532,  §  23. 
(14) 


210  EXPERT  TESTIMONY. 

in  which  the  subject  of  value  is  susceptible  of  specific  proof. 
Hence,  in  a  recent  case  in  the  United  States  Court  of 
Claims,  the  court  declared  that  the  testimony  of  experts 
could  not  be  received  to  show  the  value  of  a  cotton  factor's 
outlays  for  insurance,  freight,  rebating,  etc.,  inasmuch  as 
specific  proof  could  be  given  of  the  outlays  actually  made 
by  the  factor.1  And  in  a  case  in  New  York  where  a  witness, 
who  stated  that  he  knew  the  effect  on  fat  cattle  of  getting 
out  of  an  inclosure  and  wandering  about,  was  asked  what, 
in  his  opinion,  would  be  the  shrinkage  of  certain  cattle, 
which  he  had  not  seen,  resulting  from  such  a  tramp,  it  was 
held  that  he  could  not  answer.  The  court  said  :  "To  admit 
this,  was  to  extend  the  admissibility  of  evidence  by  experts 
too  far.  There  could  be  no  difficulty,  in  this  case,  in  show- 
ing the  actual  injury  to  the  cattle  which  followed  their 
escape  and  their  wandering  about.  If  they  had  shrunk  in 
weight,  or  had  been  injured  in  appearance,  these  facts  could 
have  been  proved  by  those  who  saw  them.  For  these  were 
plain  and  conspicuous  results.  To  prove  what  is  the  usual 
effect  of  such  an  escape  on  such  cattle,  is  to  substitute  con-- 
jecture  for  certainty."  2  The  object,  of  course,  was  to  show 
the  depreciation  in  value  of  the  cattle.  The  opinions  of 
witnesses  will  be  incompetent  wherever  the  data  upon  which 
the  conclusions  of  the  experts  are  based,  do  not  have  that 
certainty  of  relation  which  entitles  them  to  authority  as  a 
law  of  science.  It  has,  for  this  reason,  been  held  that  a  con- 
jectural deduction,  or  generalization,  made  by  experts  upon 
the  operation  of  other  railroads,  was  incompetent  evidence 
for  the  purpose  of  showing  the  worth  of  the  government's 
right  to  use  the  plaintiff's  road.3  The  experts  were  persons 
specially  familiar  with  railroads  and  railroad  accounts,  and 
the  claimants  contended  that  they  had  proven  by  them  that 
20  per  cent,  of  the  gross  transportation  earnings  of  a  rail- 
road, was  a  reasonable  and  proper  deduction  for  the  use  of 

1  Patten  v.  United  States,  15  Ct.  of  Cl.  288.    See  too,  Page  v.  Hazard, 
5  Hill  (X.Y.),  603. 
1  Schernerhorn  v.  Tyler,  11  Hun,  551. 
8  Atchison  etc.  R.  R.  Co.  v.  United  States,  15  Ct.  of  01.  126. 


VALUE.  211 

a  railroad,  and  that  they  were,  therefore,  entitled  to  recover 
80  per  cent,  of  their  tariff  rates.  The  court  refused  to  con- 
sider the  evidence,  on  the  ground  that  inasmuch  as  rail- 
roads differed  in  their  essential  features,  the  data  were  too 
uncertain  to  entitle  them  to  authority  as  a  law  of  science. 
While,  on  the  other  hand,  it  has  been  held  that  the  opin- 
ions of  witnesses  specially  acquainted  with  the  business  of 
the  railroad  in  question,  and  of  the  expenses  of  operating  it, 
would  be  competent  evidence  as  to  the  value  of  the  use  of 
the  particular  road  during  a  given  time.1  There  may  be  in- 
quiries as  to  value  which,  from  their  very  nature,  cannot  be 
answered  by  any  one  as  an  expert.  Such  would  be  an 
inquiry  into  the  value  of  the  reversion  of  land  over  which  a 
railroad  is  located  ;  the  value  of  which  necessarily  depends 
on  the  length  of  time  that  the  public  easement  over  it  may 
continue.  As  the  essential  element  on  which  the  inquiry 
turns  is  one  in  relation  to  which  there  has  been  no  experi- 
ence, it  follows  that  an  expert  could  not  be  heard  to  express 
an  opinion  thereon.2 

§  152.  The  Amount  of  Damages. —  We  find  it  laid  down 
generally  in  the  authorities,  that  on  questions  as  to  the 
amount  of  damages  resulting  from  a  particular  transaction^ 
witnesses  are  not  permitted  to  express  an  opinion,  but  are 
confined  to  a  description  of  the  injuries  ;  it  being  the  duty 
of  the  jury  to  estimate  the  damages  from  the  facts  proven 
as  to  the  nature  and  character  of  the  injuries.3  It  is,  how- 

1  Sturgis  v.  Knapp,  33  Vt.  486. 

2  Boston  etc.  R.  R.  Co.  v.  Old  Colony  etc.  R.  R.  Co.,  3  Allen  (Mass.)r 
142, 147. 

3  Lincoln  v.  Saratoga,  etc.  R.  R.  Co.,  23  Wend.  (N.  Y.)  433;  Norman  v. 
Wells,  17  Wend.  (X.  Y.)  136;  Dunham  v.  Simons,  3  Hill  (N.  Y.),  609; 
Fishv.  Dodge,  4  Denio  (N.Y.),311;   Thompson  v.  Dickhart,  66  Barb. 
(N.  Y.)  604;  Terpenningv.  Corn  Exchange  Ins.  Co.,43N.  Y.  279;  Whit- 
more  v.  Bischoff,  5  Hun  (N.  Y.),  176;  Fleming  v.  Delaware,  etc.  Canal 
Co., 8  Hun  (N.  Y.),  358;  Evansville  R.  R.  Co.  v.  Fitzpatrick,  10  Ind. 
120;    Sinclair  v.    Rousrh.    14   Ind.   450;    Mitchell  v.   Allison,  29  Ind. 
43;   Bissell  v.  Wert,  35  Ind.  54;  Ohio,  etc.  R.  R.  Co.  v.  Nickless,  71 
Ind.  271;    Pierson  v.  Wallace,  7  Ark.  282;  Central  Railroad,  etc.  Co. 
v.  Kelly,  58  Ga.   107;   Wilcox  v.  Leake,   11  La.  Ann.  178;  Atlantic, 
etc.  R.  R.  Co.  v.  Campbell,  4  Ohio  St.  583;  Cleveland,  etc.  R.  R.  Co. 


212  EXPERT  TESTIMONY 

ever,  well  settled  that  a  competent  witness  may  be  asked  to 
state  his  opinion  as  to  the  value  of  property  before  and 
after  the  injury  complained  of.1  So  that  practically  the 
same  result  is  attained,  as  though  the  witness  expressed  an 
opinion  in  answer  to  a  direct  inquiry  as  to  the  amount  of 
damages.  The  only  difference  seems  to  be,  that  in  the  one 
case,  the  jury  make  the  subtraction,  in  the  other,  the  wit- 
ness. It  certainly  seems  to  be  a  very  immaterial  distinc- 
tion, which  is  of  no  consequence  whatever.  And  in  some 
States  witnesses  are  permitted  to  express  an  opinion  in 
answer  to  a  direct  inquiry,  in  all  cases  where  the  value  of 
property  is  in  issue.  Such  is  declared  to  be  the  well  settled 
law  in  Massachusetts,2  and  the  courts  elsewhere  are  recog- 
nizing and  asserting  the  same  doctrine.3  There  seems  to 
be  a  growing  tendency  to  permit  witnesses  to  express  an 

v.  Ball,  5  Ohio  St.  568;  Roberts  v.  Commissioners  of  Brown  County, 
21  Kans.  248;  Wliitmore  v.  Bowman,  4  G.  Greene  (Iowa)  148;  Anson  v. 
Dwight,  18  Iowa,  244. 

1  Schuylkill  Navigation  Co.  v.  Thoburn,  7  S.  &  R.  (Penn.)  411, 422, 423 ; 
Watson  v.  Pittsburgh,  etc.  R.  R.  Co.,  37  Penn.  St.  469, 481 ;  East  Pennsyl- 
vania R.  R.  Co.  Y.  Hottenstine,  47  Penn.  St.  30;  Shaw  v.  City  of  Char- 
leston, 2  Gray,  107;  Inhabitants  of  West  Newbury  v.  Chase,  5  Gray 
(Mass.) ,  421 ;  Swan  v.  Middlesex,  101  Mass.  173 ;  Sexton  v.  North  Bridge- 
water,  116  Mass.  201;  Simmonsv.  St.  Paul,  etc.  R.  R.  Co.,  18  Minn.  184, 
189, 190;  Colvill  v.  St.  Paul,  etc.R.  R.  Co.,  19  Minn.  283,  285;  Smalley  v. 
Iowa  Pacific  R.  R.  Co.,  36 Iowa,  571,  574;  Snow  v.  Boston,  etc.  R.  R.  Co., 
65  Me.  230,  231;  Whiteley  v.  Inhabitants  of  China,  61  Me.  199;  Haskell 
v.  Mitchell,  53  Me.  466;  Carter  v.  Thurston,  58  N.  H.  104;  Houston,  etc. 
R.  R.  Co.  v.  Knapp,  51  Texas,  592;  Curtis  v.  St.  Paul,  etc.  R.  R.  Co., 
20   Minn.    28;    Churchill   v.  Price,    44    Wis.  542.     In    Morehouse  v. 
Mathews,  2  N.  Y.  514,  it  was  held  improper  to  permit  a  witness  to  state 
the  amount  of  damage  which  cattle  suffered  by  improper  feeding,  but 
the  court  held  that  he  might  state  how  much  less  valuable  the  cattle 
were  when  taken  away,  than  they  were  when  taken  to  the  defendant's. 

2  Shattuck  v.  Stoneham  Branch  R.  R.  Co.,  6  Allen  (Mass.),  116, 117. 

3  Rochester,  etc.  R.  R.  Co.  v.  Budlong,  10  How.  Pr.  (N.  Y.)  289 ;  Snow 
v.  Boston,  etc.  R.  R.  Co.,  65  Me.  230,  231 ;  Keithsburg,  etc.  R.  R.  Co.  v. 
Henry,  79  111.  290 ;  Cooper  v.  Randall,  59  111.  317 ;  White  &  Deer  Creek,  etc. 
Co.  v.  Sassaman,    67    Penn.   St.  415,  421;  Ottawa  Gas  Light  Co.  v. 
Graham,  35  111.  346;  Curtis  v.  St.  Paul,  etc.  R.  R.  Co.,  20  Minn.  28; 
Snyder  v.  Western  Union  R.  R.  Co.,  25  Wis.  60,  66,  70.    In  Mississippi 
River  Bridge  Co.  v.  Ring,  58  Mo.  492,  witnesses  appear  to  have  testified 
to  the  damage,  no  objection  being  made  thereto. 


VALUE.  21$ 

opinion  on  the  amount  of  damages,  where  the  value  of 
property  is  in  issue.1  The  true  principle  would  seem  to  be, 
and  has  been  so  laid  down  in  a  carefully  considered  case, 
that  whenever  the  question  of  value  and  the  question  of 
damages  are  identical,  that  then  the  opinions  of  witnesses 
may  be  received  as  to  the  amount  of  damages.  That  there 
is  no  such  inherent  distinction  between  questions  of  value 
and  questions  of  damages,  if  from  the  latter  is  excluded 
all  idea  of  any  legal  rule  or  measure  of  damages,  as  brings 
the  one  within  and  the  other  without  the  province  of  the 
opinions  of  witnesses.2  And  the  rule  is  that  where  the  in- 
jury sustained  is  of  such  a  nature  that  only  an  expert  can 
properly  form  an  opinion  in  reference  to  it,  or  when  the 
character  of  the  property  is  such  that  only  experts  can 
properly  form  an  opinion  as  to  its  value,  an  ordinary  wit- 
ness is  incompetent  to  express  an  opinion  as  to  the  amount 
of  damages,  and  experts  must  be  called  for  that  purpose.* 
§  153.  Opinions  of  Xon-Profcssioiial  AVitnesses. —  The 
opinions  of  persons  acquainted  with  the  value  of  property 
are  sometimes  received  in  evidence,  although  such  knowl- 
edge may  not  be  the  result  of  any  peculiar  skill  in  any  par- 
ticular branch  of  business,  or  department  of  science.4  They 
are  received  upon  the  ground  of  necessity.6  "  These  opin- 
ions are  admitted,  not  as  being  the  opinions  of  experts, 

J  See  Mills  on  Em.  Domain,  §  165. 

2  Rochester,  etc.  R.  R.  Co.  v.  Budlong,  10  How.  Pr.  (X.  Y.)  289. 

3  See  1  Wharton  on  Evidence,  §  450. 

4  Swan  v.  Middlesex.  101  Mass.  173;   Wyman  v.  Lexington,  ete.  R.  R, 
Co..  13  Met.  (Mass.)  216,  326;  Dalzell  v.  City  of  Davenport,  12  Iowa,  437r 
440 ;  Whitfield  v.  Whitfield,  40  Miss.  352, 358 ;  Cantling  v.  Hannibal,  etc.  R. 
R.  Co..  54  Mo.  385;  Continental  Ins.  Co.  v.Horton.  28  Mich.  173;  Prints 
v.  People.  42  Mich.  144;  Richardson  v.  McGoldrick,  43  Mich.  476;  Keables* 
v.  Christie.  47  Mich.  595;   Whitesell  v.  Crane,  8  W.  &  S.  (Penn.)  372; 
McGill  v.  Rowand.  3  Penn  St.  452;    Mish  v.  Wood,  34  Penn.  St.  451 T 
454;    Thatcher  v.  Kaucher.  2  Col.  698;  Cooper  v.  State,  53  Miss.  393; 
Cooper  v.  Randall,  59111.317,  320;  Washington,  etc.  Co.  v.  Webster,  68 
Me.  449;  Anson  v.  Dwight,  18  Iowa,  244;  Foster  v.  Ward,  75  Ind.  594; 
Pittsburgh,  etc.  R.  R.  Co.  v.  Rose,  74  Penn.  St.  368,  362;  Chamness  v. 
Chamness,  53  Ind.  304. 

5  Wyman  v.  Lexington,  etc.  R.  R.  Co.,   13    Met.  (Mass.)    316.  326; 
Dalzell  v.  City  of  Davenport,  12  Iowa,  437,  440. 


214  EXPERT  TESTIMONY. 

strictly  so  called,  for  they  are  not  founded  on  special  study 
or  training,  or  professional  experience,  but  rather  from  ne- 
cessity, upon  the  ground  that  they  depend  upon  knowledge 
which  any  one  may  acquire,  but"  which  the  jury  may  not 
have,  and  that  they  are  the  most  satisfactory,  and  often  the 
only  attainable  evidence  of  the  fact  to  be  proved.1 

A  distinguished   writer  has  stated    the  rule  as  follows: 

"  Two  essentials,  therefore,  exist  to  a  proper  estimate  of 
Talue : 

"First.  A  knowledge  of  the  intrinsic  properties  of  the 
thing. 

**  Secondly.  A  knowledge  of  the  state  of  the  markets. 
As  to  such  intrinsic  properties  as  are  occult,  and  out  of  the 
range  of  common  observers,  experts  are  required  to  tes- 
tify :  as  to  the  properties  which  are  cognizable  by  an  ob- 
server of  ordinary  business  sagacity,  being  familiar  with  the 
thing,  such  an  observer  is  permitted  to  testify."  * 

But  whenever  it  is  desired  to  have  the  opinions  of  a  wit- 
ness on  the  subject  of  value,  it  is  always  necessary,  whether 
the  witness  is  offered  as  an  expert  or  not,  to  lay  some 
foundation  for  the  introduction  of  his  opinion,  by  showing 
that  he  has  had  the  means  to  form  an  intelligent  opinion, 
•*'  derived  from  an  adequate  knowledge  of  the  nature  and 
kind  of  property  in  controversy,  and  of  its  value."  3 

§  154.  Qualifications  of 'the  Expert  in  Values. —  Where 
a  witness  is  produced  to  testify,  in  the  character  of  an  ex- 
pert, as  to  the  value  of  property,  it  should  appear  that  he 
has  some  special  skill  or  experience,  or  peculiar  knowledge 
of  the  value  of  the  class  of  property  about  which  it  is  pro- 
posed to  question  him,  such  skill  or  knowledge  having  been 
acquired  by  him  in  the  line  of  his  business  or  profession. 


1  Swan  v.  Middlesex,  101  Mass.  173,  per  Gray.  J. 

2 1  Wharton's  Evidence,  §  447. 

8  Whitney  v.  City  of  Boston,  98  Mass.  315.  In  this  case  it  was  held  no 
error  to  exclude  the  opinion  of  a  shoemaker  as  to  the  value  of  land,  who 
had  hired  one  of  several  buildings  on  the  land,  occupying  the  upper 
stories  and  underletting  the  lower.  And  see  Chainbovet  v.  Cagnet,  3  J. 
&  S.  (N.  Y.)  474;  Haight  v.  Kimbak,  51  Iowa,  13. 


VALUE.  215 

Where  the  question  was  as  to  the  value  of  a  house,  a  wit- 
ness, whose  business  was  the  loaning  of  money  on  real 
estate,  was  held  incompetent  to  testify  as  an  expert  concern- 
ing the  value  of  the  house,  for  the  reason  that  it  did  not 
appear  that  his  experience  in  the  matter  of  houses  was  such 
as  to  make  him  from  the  nature  of  his  profession,  an  exact 
judge  in  such  matters.1  So  it  has  been  held  that  witnesses 
are  not  competent  to  testify  as  experts  to  the  effect  of 
dampness  in  the  cellar  of  a  store  in  lessening  the  value  of 
the  annual  rent  of  the  building,  whose  experience  consisted 
merely  in  hiring  stores,  and  being  acquainted  with  their 
value.  "Two  witnesses,"  said  the  court,  "were  allowed 
to  testify  as  experts  after  objection,  as  to  the  effect  of  the 
state  of  the  cellar  upon  the  value  of  the  premises  in  ques- 
tion, when  their  only  stock  and  extent  of  experience  con- 
sisted of  having  hired  stores,  and  being  acquainted  with 
their  value.  They  do  not  appear  to  have  been  acquainted 
with  the  effect  on  a  yearly  rent  of  dampness  in  a  "basement 
or  water  in  a  sub-cellar.  A  mere  knowledge  of  the  value 
of  stores  which  never  had  a  damp  basement  would  not  as- 
sist any  one  in  determining  the  extent  of  its  deteriorating 
effects  on  such  value."  2 

Where  the  inquiry  related  to  the  value  of  the  services 
rendered  by  a  broker  in  effecting  the  sale  of  a  colliery,  the 
Supreme  Court  of  Pennsylvania  has  lately  held  that  a  real 
estate  broker,  whose  business  consisted  in  the  sale  of 
city  real  estate,  and  who  had  no  experience  in  and  knew 
of  no  sales  of  collieries,  or  of  commissions  paid  on  such 
sales,  was  incompetent  to  testify  as  to  the  value  of  the 
services.3  And  in  another  case,  the  value  of  a  mill  being  in 
issue,  the  Supreme  Court  of  Maine  held  that  a  witness 
•could  not  testify  as  an  expert,  where  the  testimony  showed 
that  he  had  resided  many  y«ars  in  the  vicinity  of  the  mill 
privilege  ;  that  he  was  the  owner  of  real  estate  in  the  vicin- 
ity ;  had  been  an  assessor  in  the  town  ;  and  was  something 

1  Naughton  v.  Stagg,  4  Mo.  App.  271. 

2  Benkard  v.  Babeock,  2  Robt.  (X.  Y.)  175, 186. 

3  Potts  v.  Achteruacht,  93  Perm.  St.  142. 


216  EXPERT  TESTIMONY. 

of  a  judge  of  the  value  of  real  estate  iu  that  vicinity  ;  but 
had  never  bought,  sold,  owned,  or  operated  a  mill,  and  had 
no  special  knowledge  of  the  value  of  mills  and  mill  privi- 
leges.1 So,  a  farmer  has  been  held  incompetent  to  express 
an  opinion  as  to  the  value  of  a  fishing  privilege.2  And  such 
a  person  has  been  held  to  be  incompetent  to  express  an 
opinion  as  to  the  value  of  the  services  rendered  by  a  clerk 
in  a  country  store.3 

It  is  impossible,  however,  to  define  with  any  precision  the 
degree  of  special  knowledge  which  the  witness  should  pos- 
sess in  order  to  render  him  competent.4  The  witness  should 
have  peculiar  knowledge  of  the  property  and  of  its  value, 
is  the  language  of  the  decisions.5  "The  evidence  of  experts 
is  received  on  the  ground  of  science  or  skill,  and  witnesses 
may  speak  on  the  value  of  property  or  labor,  where  it  ap- 
pears they  have  peculiar  sources  of  knowledge  to  guide  them 
on  these  subjects,  and  which  are  not  presumed  to  be  equally 
within  the  reach  of  the  jury."  6 

§  155.  Not  Necessary  that  Expert  sliould  See  the  Prop- 
erty in  Question. —  As  experts  may  testify  where  they 
have  no  personal  knowledge  of  the  facts  in  [controversy, 
basing  their  opinions  upon  the  facts  which  have  been  testi- 
fied to  by  other  witnesses,  so  the  opinion  of  an  expert  may 
be  received  as  to  the  value  of  articles  similar  to  one  which 
has  been  described  by  witnesses  having  personal  knowledge 
of  it,  although  such  expert  has  never  seen  the  particular  ar- 
ticle in  question  which  has  been  lost  or  destroyed.  No  rea- 
son is  perceived  why  an  expert,  testifying  in  respect  to  value, 
should  be  governed  by  a  different  principle  in  this  respect  than 
that  which  applies  to  experts  testifying  upon  other  subjects. 

In  a  case  in  Pennsylvania  this  question  was  considered,, 
and  the  conclusion  was  reached  that  it  was  unnecessary  that 

1  Clark  v.  Rockland  Water  Power  Co.,  52  Me.  68. 

2  Boston,  etc.  R.  R.  Ce.  v.  Montgomery,  119  Mass.  114. 

3  Lamoure  v.  Caryl,  4  Denio  (N".  Y.),  373. 

4  Bedell  v.  Long  Island  R.  R.  Co..  44  N.  Y.  367,  370. 

5  Terpenning  v.  Corn  Exchange  Ins.  Co.,  43  N.  Y.  279. 

6  Lamoure  v.  Caryl,  4  Denio  (X.  Y.),  373. 


VALUE.  217 

the  expert  should  have  personal  knowledge  of  the  particular 
article.  "What  is  there,"  asked  Mr.  Justice  THOMPSON, 
"  to  prevent  a  merchant  from  testifying,  in  corroboration 
of  an  invoice,  as  to  values,  where  no  values  are  given,  when 
goods  are  lost?  The  fact  of  the  existence  or  loss  of  the 
goods  is  not  touched  by  such  testimony.  That  remains  to 
be  established  by  other  evidence.  I  think  I  have  known 
many  instances  of  this  kind.  If  a  trunk  should  be  packed 
by  a  servant,  incapable  of  placing  a  value  on  the  wardrotje 
of  his  or  her  master  or  mistress,  although  able  to  testify  to 
each  article,  and  describe  its  quality,  yet  wholly  incompe- 
tent to  give  the  slightest  idea  of  the  real  value  of  the  arti- 
cles ;  in  case  of  loss  how  is  the  value  to  be  ascertained,  but 
by  the  testimony  of  a  tradesman  acquainted  with  the  value 
of  such  articles,  based  upon  a  description  of  them?  So  in 
regard  to  furniture  insured,  and  lost  by  fire,  it  can  hardly 
be  doubted,  but  that  it  would  be  competent  to  fix  the  value,, 
by  persons  acquainted  with  such  matters,  and  competent  as 
such  to  testify,  after  its  quality  had  been  described. 

If  the  rule  be,  that  only  persons  who  have  seen  the  arti- 
cles which  have  been  lost,  can  give  an  estimate  of  their 
value,  then,  in  all  the  cases  suggested,  there  would  be  a 
failure  to  recover  for  a  loss,  or  the  jury  would  be  left  to 
guess  at  their  value."  l  It  has  been  held  that  a  nurseryman 
could  testify  as  to  the  value  of  trees  which  had  been  de- 
stroyed, and  which  he  had  not  seen,  but  had  heard  de- 
scribed.2 And  the  courts  elsewhere  have  taken  a  similar 
view  of  this  question.3  But  where  a  millwright  had  neither 
seen  the  mill  in  question,  nor  a  drawing  of  it,  and  where  he 
testified  that  it  was  hard  to  estimate  the  cost  of  the  mill 
without  seeing  or  knowing  what  the  work  was,  it  was  held 

1  Mish  v.  Wood,  34  Penn.  St.  451. 

2  Whitbeck  v.  X.  Y.  etc.  R.  R.  Co.,  36  Barb.  644. 

3  Orr  v.  Mayor,  etc.,  64  Barb.  106;  Miller  v.  Smith,  112  Mass.  470,  475;; 
Beecher  v.  Denniston.  13  Gray  (Mass.),  354.  In  Miller  v.  Smith,  supra,  a. 
witness  possessing  special  knowledge  and  experience  was  permitted  to 
express  an  opinion  as  to  the  value  of  fast  trotting  horses  of  a  certain 
age,  size,  gait,  speed,  and  other  qualities,  although  he  had  not  seen  the 
horse  in  question. 


218  EXPERT  TESTIMONY. 

that  he  could  not  testify  to  its  value,  although  he  stated  he 
thought  he  could  come  within  five  or  ten  per  cent,  of  its 
Value  if  he  had  a  right  view  of  the  mill.1 

§  156.  Time  of  Examination  of  Property  by  the  Ex- 
pert.—  Where  an  expert  testifies  as  to  the  value  of  the 
property  from  a  personal  examination  made  of  it,  the  ques- 
tion has  arisen  whether  the  time  of  examination  was  so  re- 
mote to  the  time  of  inquiry  as  to  render  the  opinion  inad- 
missible. In  the  case  in  question  the  expert  had  ex- 
.amined  the  property,  real  estate,  six  months  before  he 
was  called  on  to  testify,  and  his  knowledge  had  refer- 
ence to  that  time.  The  court  held  his  opinion  admis- 
sible, and  Mr.  Justice  AMES  said:  "In  an  inquiry  as  to 
the  value  of  property  at  any  given  time,  it  is  impossible  to 
say  that  evidence  as  to  its  value  at  an  earlier  date  is  incom- 
petent and  inadmissible,  unless  that  earlier  date  is  so  remote 
as  to  have  no  importance  or  relevance  in  the  inquiry.  It 
cannot  be  said  to  be  too  remote  in  this  instance."  2 

It  is  evident  that  much  must  depend  on  the  nature  of  tHe 
property.  A  period  of  time  which  would  not  be  remote  as 
to  real  estate  might  be  too  remote  as  to  personalty,  or  what 
would  be  remote  as  to  realty  in  one  part  of  the  country, 
would  not  be  remote  in  another  part,  where  the  value  of 
such  property  changes  slowly. 

§  157.  Competency  in  Particular  Cases. —  The  opinion 
of  an  author  is  received  as  to  the  value  of  his  literary  pro- 
duction, based  upon  the  time  and  labor  employed  in  its 
preparation.3  An  artist  may  testify  as  an  expert  as  to 
the  value  of  a  portrait.4  Millwrights  are  competent  wit- 
nesses as  to  the  value  of  work  done  on  a  mill,5  and  ma- 
chinists as  to  the  value  of  particular  machinery.6  Where 

1  Westlake  v.  St.  Lawrence  Co.  Ins.  Co.  14  Barb.   (X.  Y.)  206:  s.  c., 
3  Bennett  Fire  Ins.  Cases,  404. 
z  Cobb  v.  City  of  Boston,  109  Mass.  438. 

3  Babcock  v.  Raymond,  2  Hilt.  (NT.  Y.)  61. 

4  Houston  etc.  R.  R.  .Co.  v.  Burke,  55  Texas.  324. 
*  Adams  v.  Dale,  29  Ind.  273. 

e  Steam  Packet  Co.  v.  Sickles.  10  Howard  (U.  S.)  419;  Haskins  v. 
Hamilton  ins  Co.,  5  Gray  (Mass.).  432;  Winter  v.  Burt,  31  Ala.  33. 


VALUE.  219 

the  question  was  as  to  the  value  of  a  particular  thresh- 
ing machine,  a  witness  who  testified  that  he  had  run  a 
threshing  machine  for  six  or  eight  years,  and  had  seen 
the  particular  machine  in  operation,  was  adjudged  com- 
petent to  express  an  opinion  as  to  how  much  less  such  ma- 
chine was  worth  than  other  machines  that  would  run  and  do 
first  class  work.1  A  superintendent  of  locomotive  works, 
who  was  familiar  with  the  cost  of  building,  rebuilding  and 
repairing  locomotives,  and  with  the  value  of  the  materials 
used  therein,  and  the  labor  employed  thereon,  has  been  per- 
mitted to  answer  the  following  question:  "Could  the  en- 
gine (which  you  have  seen)  by  any  possibility  have  been  so 
damaged  by  wear  and  tear,  or  by  accident,  that  with  the 
parts  or  materials  as  testified  to  by  Mr.  F.,  $20,000  would 
have  been  a  reasonable  charge  for  rebuilding  her?"  2  So 
one  who  had  purchased  and  sold  machinery  of  a  peculiar 
kind,  and  owned  and  run  it,  and  had  made  estimates  of  the 
cost  of  building  such  machinery,  and  had  procured  such 
estimates  of  other  machinists  for  the  purpose  of  having 
such  machines  manufactured,  has  been  held  competent  to 
testify  as  to  the  value  of  such  machinery.3 

A  witness  who  had  experience  and  knowledge  of  sales  by 
retail  of  such  articles  as  sugar,  whisky,  tobacco  and  ale, 
and  of  the  losses  which,  according  to  his  own  experience  in 
the  course  of  several  years,  were  the  results  of  sales  of 
such  goods  in  small  quantities,  has  been  allowed  to  testify 
that  it  would  be  impossible  to  realize  by  small  sales,  the 
amount  of  the  retail  prices  on  the  entire  quantity  of  articles 
sold,  and  to  give  his  reasons  therefor,  and  to  testify  that, 
as  the  result  of  his  own  experience,  his  opinion  was  that 
small  retail  sales  of  such  articles  would  cause,  in  ordinary 
cases,  a  loss  of  five  per  cent,  upon  the  total  account  of 
goods  so  sold.4  Real  estate  agents  accustomed  to  value 
and  sell  real  estate  in  the  neighborhood  or  city  where  the 

1  Sheldon  v.  Booth,  50  Iowa,  200. 

2  Tyng  v.  Fields,  5  Sup.  Ct.  (N.  Y.),  672. 

3  Raskins  v.  Hamilton  Mutual  Ins.  Co.,  5  Gray  (Mas.O,  4:52. 
*  MTadden  v.  Murdoek,  1  Irish  K.  (C.  L.)  211. 


220  EXPERT  TESTIMONY. 

land  in  question  is  situated,  are  competent  to  testify  as  to- 
its  value.1  A  real  estate  agent,  engaged  in  letting  houses, 
testifying  as  an  expert  to  rental  value,  may  be  asked  on 
cross-examination  as  to  where  the  houses  were  situated  which 
he  had  let,  what  they  were,  and  what  rent  they  were  let 
for.2  A  real  estate  expert  testifying  as  to  the  rental  value 
of  a  lot,  cannot  base  his  opinion  upon  a  computation  of  the 
annual  interest  upon  what  he  believes  to  be  the  value  of  the 
fee;  he  must  have  other  means  of  knowledge.8  Farmers, 
graziers  and  drovers  have  been  held  competent  to  testify 
as  to  the  value  of  growth  and  increase  of  weight  which 
certain  cattle  might  reasonably  have  been  expected  to 
attain,  but  for  the  over-feeding  of  the  pasture  where  they 
grazed.4  A  farmer  has  been  permitted  to  testify  as  to- 
the  loss  in  value  of  a  cow  by  allowing  her  to  become 
dry.5  So  he  has  been  held  competent  to  express  an  opinion 
as  to  the  value  of  a  mare  of  common  blood,6  and  as  to  the 
value  of  grass  destroyed  by  cattle.7 

§  158.  Competency  in  Particular  Cases — The  Subject 
Continued. — Persons  experienced  in  building  railroads  may 
testify  what,  in  their  opinion,  will  be  the  probable  cost  of 
completing  a  railroad.8  An  architect  is  allowed  to  testify  as 
to  the  value  of  houses  ;  and  in  the  case  cited,  such  a  witness 
was  permitted  to  testify  as  to  the  depreciation  in  value 
of  buildings  in  a  neighborhood,  as  caused  by  a  nuisance.9 
A  carpenter,  engaged  in  buying  lumber  and  building 
houses,  is  a  competent  witness  as  to  the  value  of  the 
lumber  in  a  particular  house.10  And  carpenters  have  been 

1  Bristol  County  Savings  Bank  v.  Keavy,  12S  Mass.  298. 

2  Druckerv.  Simon,  4  Daly  (X.  Y.),  53. 

8  Maguire  v.  Labeaurae,  7  Mo.  App.  185. 
«  Gilbert  v.  Kennedy,  22  Mich.  117. 

fi  Smith  v.  Wilcox,  4  Hun  (X.  Y.),  411. 

«  Brown  v.  Moore,  32  Mich.  254. 

7  Townsend  v.  Brundage,  6  Thomp.  &  C.  (N .  Y.)  527. 

»  Waco  Tap  R.  R.  Co.  v.  Shirley.  45  Texas,  355. 

9  Gauntlett  v.  Whitworth,  2  C.  &  K.  720. 

10  Simmons  v.  Carrier,  68  Mo.  416;  Shepard  v.  Ashley.  10  Allen  (Mass.), 
542. 


VALUE.  221 

permitted  to  testify  as  to  the  value  of  a  house  which  had 
been  destroyed  by  fire,  it  appearing  that  they  possessed 
a  general  acquaintance  with  the  house  in  question,  having  a 
knowledge  of  its  shape,  location,  external  appearance,  and 
to  some  extent,  its  internal  condition.1  Such  persons  have 
also  been  allowed  to  express  an  opinion  as  to  the  cost  of 
building  a  house  in  the  vicinity  of  the  town  where  they 
worked,  their  opinions  being  based  on  an  examination  of  the 
plans  and  specifications  of  the  house.2  In  a  recent  case  in 
New  York,  it  is  laid  down  that  a  carpenter  and  builder,  an 
architect,  or  an  insurance  and  real  estate  agent  engaged  in 
appraising  similar  property,  would  be  competent  to  express 
an  opinion  as  to  the  value  of  replacing  a  house  destroyed 
by  fire,  their  opinion  being  based  on  knowledge  which  they 
had  acquired  as  dealers  or  builders.3  So,  too,  it  has  been 
held  that  a  carpenter  and  builder  who  had  seen  the  build- 
ings in  question,  and  knew  the  kind  and  quality  of  lumber 
put  into  them,  was  qualified  to  testify  what  it  was  reason- 
ably worth  to  put  the  lumber  into  the  buildings.4  Dealers 
in  articles  are  competent  witnesses  as  to  the  value  of  such 
articles.5  "When  persons  are  engaged  in  any  particular 
trade,  the  presumption  is,  that  they  are  acquainted  with  the 
value  and  intrinsic  worth  of  the  articles  which  they  are 
engaged  in  buying  and  selling."6  For  this  reason,  in  the 
case  cited,  it  was  said  that  bankers  and  brokers  were  pre- 
sumed to  be  better  acquainted  with  the  genuineness  and 
value  of  the  circulation  of  banks,  than  the  community 
generally.  "Their  opportunities  are  better,  and  the  interest 
of  their  business  necessarily  leads  them  to  inform  themselves 
in  this  respect,  beyond  other  persons."  So  a  dealer  in  hay 

1  Bedell  v.  Long  Island  R.  R.  Co.,  44  X.  Y.  367. 

2  Hills  v.  Home  Ins.  Co.,  129  Mass.  345. 

3  Woodruff  v.  Imperial  Fire  Ins.  Co.,  83  X.  Y.  133,  138;   s.  c.  10  Ins. 
Law  J.  125.    See  also  Tebbetts  v.  Haskins,  16  Me.  283. 

«  Hough  v.  Cook,  69  111.  581. 

5  Cantling  v.  Hannibal  etc.  R.  R.  Co.,  54  Mo.  385;  Luse  v.  Jones,  39  N. 
J.  Law,  708;  Sturm  v.  Williams.  38  N.  Y.  Superior  Ct.  325;  Illinois  Cen- 
tral R.  R.  Co.  v.  Copeland,  24  111.  33G. 

6  Hiuckley  v.  Kersting,  21  111.  247. 


222  EXPERT  TESTIMONY, 

may  testify  as  to  the  value  of  hay.1  And  one  who  had  been1 
engaged  for  many  years  in  sawing,  buying  and  selling  box 
board  logs,  and  who  had  erected  a  mill  for  the  purpose  of 
sawing  them,  has  been  held  a  competent  witness  as  to  their 
value.2  A  gunsmith  is,  by  reason  of  his  acumen  and  knowl- 
edge of  firearms,  a  competent  witness  as  to  the  value  of  a 
gun.3  A  broker  is  competent  to  testify  to  the  value  of 
stocks.4 

§  159.  The  Value  of  Legal  Services. — At  common  law 
the  rewards  of  an  advocate's  services  were  deemed,  not 
merces,  but  honoraria,  and  could  not  be  recovered  by  means 
of  legal  proceedings.5  But  in  this  country  the  rule  of  the 
common  law  does  not  prevail,  and  a  right  of  action  exists 
for  the  recovery  of  counsel  fees.6  In  the  absence  of  some 
express  contract  fixing  the  amount  of  the  attorney's  com- 
pensation, if  an  action  is  instituted  to  enforce  payment,  it 
is  necessary  to  determine  the  value  of  the  services  rendered. 
The  rule  therefore  is  that  in  such  an  action  an  attorney 
may  be  called  as  an  expert  to  testify  as  to  the  value  of  the 
services  in  question.7  It  has  been  well  said,  that  "  the  very 
best  means  of  adjusting  this  value  are  the  opinions  of  those 
who,  in  earning  and  receiving  compensation  for  them,  have 

1  Burger  v.  Northern  Pacific  K.  K.  Co.,  22  Minn.  343. 

2  Lawton  v.  Chase,  108  Mass.  238. 

3  Cooper  v.  State,  53  Miss.  393;  Beecherv.  Denniston,13  Gray  (Mass.), 
354. 

4  Jonan  v.  Ferrand,  3  Rob.  (La.)  366. 

5  Kennedy  v.  Brown,  13  C.  B.  (N.  s.)  677;  32  L.  J.  137.    And  see  Brown 
v.  Kennedy,  33  L.  J.  Ch.  71 :  33  Beav.  133;  4  D.  J.  &  S.  217. 

6  See  13  Central  Law  Journal,  43,  where  the  subject  is  considered  and 
the  cases  collected.    The  English  rule,  however,  is  still  recognized  in  New 
Jersey.    Seeley  v.  Brown,  15  X.  J.  L.  35;  Van  Atta  v.  McKinney,  16  X. 
J.  L.  235;  Schoup  v.  Schenck,  40  X.  J.  L.  195.    And  counsel  fees  cannot 
be  recovered  unless  an  express  contract  fixing  the  fees  is  shown.  Hopper 
v.  Ludlum,  41  N.  J.  Law,  182  (1879). 

7  Harnett  v.  Garvey,  66  N.  Y.  641 ;   Williams  v.  BroAvn,  28  Ohio  St. 
547,  551;  New  Orleans  etc.  R.  R.  Co.  v.  Albreton,  38  Miss.  242,  246,  273; 
Allis  v.  Day,  14  Minn.  516 ;   Anthony  v.  Stinson,  4  Kans.  211 ;   Ottawa 
University  v.  Parkinson,  14  Kans.  159;  Head  v.  Hargrave,  14  Cent.  L. 
J.  388  (Sup.  Ct.  of  U.  S.);   Llussman  v.  Merkel,  3  Bos.  (N.  Y.)  402; 
Beekman  v.  Platner,  15  Barb.  (N".  Y.)  550;  Jevne  v.  Osgood,  57  111.  340. 


VALUE.  223 

learned  what  legal  services  in  their  various  grades  are 
worth."  l  And  the  opinion  has  been  expressed  that  one 
who  is  not  an  attorney  is  incompetent  to  prove  the  value  of 
an  attorney's  services.2  But  it  does  not  seem  to  be  neces- 
sary that  the  attorney  should  be  at  the  time,  actually 
engaged  in  the  active  practice  of  his  profession.3  The 
witness  may  base  his  opinion  in  part  on  his  personal  knowl- 
edge, and  in  part  on  the  testimony  of  others  ; 4  and  if  he  has 
no  personal  knowledge  of  the  services  rendered,  his  testi- 
mony must  be  based  upon  a  hypothetical  question  submitted 
to  him.5  In  determining  the  value  of  the  attorney's  ser- 
vices, it  is  proper  to  show  by  the  witness,  the  character  and 
professional  standing  of  the  person  rendering  the  services 
in  question,6  as  well  as  the  nature  and  importance  of  the 
services  rendered.7  And  it  has  been  held  proper  to  pro- 
pound the  following  inquiry  :  "  From  the  character  of  the 
case  set  out  in  the  complaint  filed,  what  would  be  a  reason- 
able fee  for  defending  said  suit?"  {  The  value  of  the  ser- 
vices of  counsel  under  circumstances  of  general  similarity  to 
those  under  which  the  services  in  question  were  rendered, 
may  also  be  shown.9  But  what  an  attorney  receives  in  a 
case  is  no  criterion  of  the  value  of  the  services  of  another 
attorney  in  the  same  case,  in  the  absence  of  any  showing 
that  the  services  were  similar,  the  skill  equal,  and  the  time 
spent  the  same.10  It  has  been  held,  that  upon  the  cross- 
examination  of  an  attorney  testifying  as*  an  expert  in  such 
cases,  it  is  within  the  discretion  of  the  trial  court  to  reject  a 

1  Thompson  v.  Boyle,  85  Penn.  St.  477. 

2  Hart  v.  Vidal,  8  Cal.  56. 

3  See  Blizzard  v.  Applegate,  61  Ind.  371. 

*  Garfield  v.  Kirk,  65  Barb.  (X.  Y.)  464;  Brown  v.  Huffard,  69  Mo. 
305. 

«  Williams  v.  Brown,  28  Ohio  St.  547,  551 ;  Central  Branch  etc.  R.  R. 
Co.  v.  "Nichols,  24  Kans..242. 

6  Jackson  v.  X.  Y.  Cent.  R.  R.  Co.,  2  Sup.  Ct.  653. 

7Harland  v.  Lilienthal,  53  N.  Y.  438;  Garfleld  v.  Kirk,  65  Barb. 
(X.  Y.)  464. 

8  Covey  v.  Campbell,  52  Ind.  158. 

9  Thompson  v.  Boyle,  85  Penn.  St.  477. 

10  Ottawa  University  v.  Parkinson,  14  Kans.  160. 


.224  EXPERT  TESTIMONY. 

question  as  to  the  income  derived  by  the  witness  from  th  e 
practice  of  his  profession.1 

§  160.  The  Value  of  Services  Rendered  by  Physicians 
and  Nurses. —  In  a  case  decided  as  early  as  1791,  Lord 
EJENYON  declared  that  he  understood  that  the  fees  of  phy- 
sicians and  surgeons  were  merely  honorable  and  not  de- 
maudable  of  right.2  And  such  was  undoubtedly  the  law  of 
England.3  In  this  country  the  courts,  however,  have  not 
recognized  the  English  rule,  and  physicians  may  recover  for 
the  value  of  their  services.4  And  this  right  is  now  secured 
to  them  in  England  by  statute  adopted  in  1858.5 

As  the  value  of  services  rendered  by  lawyers  may  be 
shown  by  the  testimony  of  those  engaged  in  the  same  pro- 
fession, so  the  value  of  the  services  rendered  by  physicians 
and  surgeons  in  the  practice  of  their  profession,  is  to  be 
shown  by  the  testimony  of  their  professional  brethren.  And 
it  has  been  laid  down  that  one  who  is  not  a  physician,  is  in- 
competent to  testify  as  to  the  value  of  medical  services.6 
But  it  seems  it  is  not  necessary  that  the  witness  should  know 
just  what  physicians  were  in  the  habit  of  charging  for  services 
similar  to  those  in  question,  and  for  what  such  services  could 
•be  procured.7  In  the  Indiana  case  last  cited  the  facts  were  as 


1  Harland  v.  Lilienthal,  53  N.  Y.  438. 

2  Chorley  v.  Bolcot,  4  Term,  R.  317. 

3  Lipscombe  v.  Holmes,  2  Camp.  441. 

*  Judah  v.  MoNamee,  3  Blackf.  (Ind.)  269;  Mooney  v.  Lloyd,  5  S.  & 
R.  (Penn.)  416;  Eouse  v.  Morris,  17  S.  &  R.  (Penn.)  328;  Simmons  v. 
Means,  S  S.  &  M.  (Miss.)  397;  Mock  v.  Kelly,  3  Ala.  387;  Smith  v. 
Watson,  14  Vt.  332. 

5  21  and  22  Viet.  Ch.  90,  §  31.    See  too,  Gibbon  v.  Budd,  32  L.  J.  Ex. 
182;  s.  c.,  2H.  &C.  92. 

6  Mock  v.  Kelly,  3  Ala.  387.    And  see  Wood  v.  Brewer,  57  Ala.  515. 

7  Board  of  Commissioners  v.  Chambers,  75  Ind.  409.    In  this  connec- 
tion it  is  interesting  to  note  the  language  of  the  Supreme  Court  of  Min- 
nesota in  Elfelt  v.  Smith,  1  Minn.  126 :     "  The  value  of  services  upon  a 
quantum  meruit  stands  in  regard  to  the  proof,  upon  the  same  principle  as 
the  value  of  chatties  upon  a  quantum  valebant.    The  value  of  chattels  in 
such  a  case  is  always  regulated  by  the  usual  or  market  value  of  such 
chattels,  of  like  quality,  at  the  time  and  place  of  sale ;  and  before  a  wit- 
ness can,  in  such  a  case,  be  permitted  to  testify  to  such  value,  it  must 
appear  by  his  own,  or  other  competent  evidence,  that  he  knows  with 


VALUE.  22$ 

follows  :  Certain  physicians  were  called  to  testify  as  to  the 
value  of  the  services  of  a  physician  in  making  a  post  mortem, 
examination  under  the  employment  of  a  coroner.  The  wit- 
nesses testified  on  their  direct  examination  that  they  were 
physicians  and  surgeons,  and  considered  themselves  compe- 
tent to  testify  as  to  the  value  of  services  rendered  in  mak- 
ing post  mortem  examinations.  But  it  appeared  on  their 
cross-examination  that  they  did  not  know  what  physicians 
had  charged  for  making  such  examinations,  and  that  they 
knew  nothing  of  the  prices  at  which  such  services  could  be 
procured,  but  formed  their  judgment  of  the  value  of  the 
services  from  what  they  thought  such  services  would  be 
worth.  The  'court  held  it  proper  that  their  testimony 
should  be  received,  saying:  "The  testimony  was  compe- 
tent, for  the  witnesses  were  shown  to  be  experts,  and  to 
possess  such  knowledge,  skill  and  acquaintance  with  the 
subject  under  investigation  as  entitled  them  to  express  their 
opinions  to  the  jury.  They  may  have  had  some  knowl- 
edge of  the  value  of  such  services,  without  knowing  any- 
thing at  all  about  what  others  were  charging  for  like  ser- 
vices." 

In  an  action  by  a  physician  to  recover  for  medical  ser- 
vices, it  is  competent  for  him  to  prove  the  nature  of  the  dis- 
ease, and  the  character  of  the  treatment  given  ;  and  such 
evidence  is  not  rendered  incompetent  by  the  provision  of 
the  statute,  forbidding  the  disclosure  of  confidential  com- 
munications made  by  a  patient  to  his  physician.1  As  to  the 
value  of  services  rendered  in  nursing  and  caring  for  the  sick,, 
the  rule  is  that  the  witnesses  should  be  persons  who  have  hadi. 
experience  in  nursing  and  caring  for  the  sick.  Physicians* 

reasonable  certainty  what  such  usual  or  market  value  is.  lie  then  testi- 
fies to  the  value  as  a  fact,  and  not  as  a  mere  matter  of  opinion.  So  in. 
regard  to  services:  it  must  appear  that  the  witness  knows  the  usual 
value  of,  or  rate  of  compensation  paid  for  such  or  the  like  services  at 
the  time  when,  and  place  where,  they  were  rendered,  before  he  can  be 
properly  permitted  to  testify  what  such  value  or  rate  is." 

1  Kendall  v.  Gray,  2  Hilton  (X.  Y.),  302. 

2  Woodward  v.  Bugsbee,  4  N.  Y.  Sup.  Ct.  393;  Reynolds  v.  Robinson,. 
64  X.  Y.  589;  Shafer  v.  Dean's  Adm'r.,  29  Iowa,  144. 

(15) 


226  EXPERT  TESTIMONY. 

and 'nurses1  are  competent  witnesses  in  such  cases.  And 
it  has  been  held  that  one  who  had  long  had  the  care 
of  an  insane  person,  and  provided  for  his- table,  and  who 
had  been  for  a  considerable  period  of  time  in  another 
family  while  such  person  was  boarding  there,  was  qualified 
to  express  an  opinion  as  to  the  value  of  taking  care  of 
him  and  boarding  him  in  the  latter  place.2 

§  161.  Value  of  Services  in  other  Callings. —  The 
general  rule  is  that  it  is  competent  for  a  witness  to  state 
the  value  of  another's  services  in  all  cases  where  he  has 
knowledge  of  the  matter  in  controversy,  and  is  acquainted 
with  the  value  of  services  such  as  those  rendered  in  the  par- 
ticular case.3  For  instance,  an  expert  accountant  may  tes- 
tify as  to  what  would  be  a  fair  compensation  for  the  ser- 
vices of  a  competent  accountant  in  keeping  the  account 
books  of  a  business  of  a  certain  character,  and  as  to  the 
usual  charge  per  day  for  the  services  of  an  accountant  in 
fixing  up  complicated  accounts.4  And  where  the  plaintiff, 
who  was  not  a  real  estate  broker,  sued  for  services  rendered 
in  effecting  the  purchase  of  a  mill,  the  evidence  of  a  real 
estate  broker  was  held  admissible  as  to  the  commissions 
which  he  charged  for  such  services,  and  as  to  what  he  would 
have  charged  in  the  case  in  question.5  Elsewhere  it  has 
been  held  that  the  statements  of  what  the  witness  himself 
would  have  charged  for  similar  services,  were  inadmissible.6 
In  a  case  in  Indiana,  it  was  held  no  error  on  the  cross-exam- 
ination, to  ask  the  witness  what  he  Avould  have  undertaken, 
the  work  for.7 

But  if  the  witness  is  unacquainted  with  the  value  of  ser- 
vices such  as  those  rendered  in  the  particular  case,  he  is  not 
an  expert  in  that  particular  matter  of  inquiry,  and  cannot 

1  Shafer  v.  Dean's  Adm'r.,  supra. 

2  Kendall  v.  May,  10  Allen  (Mass.),  59. 

3  Bowen  v.  Bowen,  74  Ind.  470;  Johnson  v.  Thompson,  72  Ind.  167 ;  Par- 
ker's Heirs  v.  Parker's  Adrar.,  33  Ala.  459. 

4  Shattuck  v.  Train,  116  Mass.  296. 

5  Elting  v.  Stnrtevant,  41  Conn.  176. 

6  Fairchild  v.  M.  C.  R.  JK.  Co.,  8  Bradw.  (lil.)  591. 

7  Oilman  v.  Gard,  29  Ind.  291.  293. 


VALUE.  227 

testify  as  such.  Hence,  in  a  suit  by  a  broker  to  recover 
commissions  for  the  sale  of  a  colliery,  a  broker  whose  busi- 
ness was  the  sale  of  real  estate  in  Philadelphia,  and  who 
had  no  experience  and  knew  of  no  sales  or  commissions  paid 
on  sales  of  colleries,  was  held  an  incompetent  witness  as  to 
the  value  of  the  services  rendered.1  In  an  action  brought  for 
services  in  planning,  preparing  and  organizing  for  the  erec- 
tion of  a  factory,  and  in  superintending  the  mounting  and 
putting  in  operation  of  its  machinery,  the  Supreme  Court 
of  Georgia  has  permitted  witnesses,  who  were  not  experts, 
and  who  knew  nothing  of  the  particular  services  sued  for, 
except  from  a  general  description  of  the  same  contained  in 
the  interrogatories  in  answer  to  which  their  evidence  was 
given,  to  testify  as  to  what  in  their  opinion  would  be  a  rea- 
sonable salary  for  the  services  performed.  The  court  held 
that  witnesses  who  had  employed  the  person  rendering  the 
services,  or  who  had  been  employed  with  him,  and  who  had 
seen  the  results  of  his  skill,  and  who  knew  his  professional 
standing,  could  testify  in  such  cases.2  It  was  conceded, 
however,  that  the  evidence  was  barely  admissible.  So  it 
has  been  held  that  neighbors,  who  have  employed  servants 
to  do  like  work,  are  competent  to  testify  to  the  value  of 
services  of  a  girl  employed  to  do  housework.3  And  the 
value  of  the  services  of  a  farm  laborer  may  be  shown  by  the 
testimony  of  those  who  had  employed  him.4 

§  162.  Opinions  as  to  the  Value  of  Real  Estate. —  On 
questions  of  the  valuations  of  real  property  it  is  frequently 
found  necessary  to  take  the  opinions  of  witnesses  who  are 
not  experts.  ««  The  market  value  of  land  is  not  a  question 
of  science  or  skill,  upon  which  only  an  expert  can  give  an 
opinion."  5  But  a  strange  inconsistency  is  seemingly  found 
in  the  rules  laid  down  in  the  different  courts  as  to  the  qual- 
ifications of  those  who  may  express  opinions  in  such  cases. 

1  Potts  v.  Aechternacht,  93  Penii.  St.  142. 

2  Eagle  &  Phoenix  Manuf.  Co.  v.  Browne,  58  Ga.  240. 

3  Carter  v.  Carter,  36  Mich.  207. 

4  Ritter  v.  Daniels,  47  Mich.  G17. 

5  Pennsylvania,  etc.  R.  R.  Co.  v.  Bnnnell,  81  Penn.  St.  426. 


228  EXPERT  TESTIMONY. 

Ill  Illinois  it  is  said  that  the  value  of  real  estate  is  to  be  as- 
certained from  the  opinions  of  those  who  profess  to  be 
familiar  with  the  subject  of  inquiry,  and  whose  business  in 
life  has  afforded  them  an  opportunity  of  acquiring  informa- 
tion and  of  judging  accurately  on  such  questions.1  While 
in  Massachusetts  witnesses  are  competent  to  testify  as  to 
the  value  of  land,  whose  knowledge  is  derived  from  sales 
or  purchases  made  by  themselves,  or  by  others,  although 
upon  their  cross-examination  they  say  they  know  no  more 
concerning  the  value  of  land  than  citizens  generally.2  In 
Pennsylvania  it  is  said  that,  "  Persons  living  in  the  neigh- 
borhood may  be  presumed  to  have  a  sufficient  knowledge  of 
the  market  value  of  property  with  the  location  and  charac- 
ter of  the  land  in  question.  Whether  their  opinion  has  any 
proper  ground  to  rest  upon,  or  is  mere  conjecture,  can  be 
brought  out  upon  cross-examination."3,  And  in  Missouri  it 
is  said  that,  "  Property  holders  and  residents  in  the  neigh- 
borhood where  land  is  situated  are  competent  witnesses  to 
iix  the  price  of  land  in  that  neighborhood."4  While  in 
Rhode  Island  the  court  say  opinions  are  not  admissible 
simply  because  the  witness  resides  near  the  land  and  is  ac- 
quainted with  it.5  Then  again  we  find  the  rule  laid  down  in 
general  terms,  that  witnesses  having  a  personal  knowledge 
of  the  property,  and  who  possess  the  necessary  information 
to  enable  them  to  form  a  proper  estimate  of  the  value  of 
the  land,  are  competent  to  express  the  opinion  which  they 
have  formed.6  However  differently  the  rule  may  be  laid 
down,  the  inconsistencies  of  expression  are  more  apparent 
than  real.  And  it  is  believed  that  the  courts  are  practically 
unanimous  in  holding  that  residents  in  the  immediate 
vicinity,  who  are  acquainted  with  the  property  in  question, 
and  know  the  value  of  land  in  that  neighborhood,  are  com- 

1  Green  v.  City  of  Chicago,  97  111.  372. 

2  Swan  v.  Middlesex,  101  Mass.  173. 

3  Pennsylvania,  etc.  K.  R.  Co.  v.  Bunnell,  81  Penn.  St.  426. 

4  Thomas  v.  Mallinckrodt,  43  Mo.  65. 

5  Bnffum  v.N.  Y.,  etc.  R.  R.  Co.,  4.  R.  I.  221. 

6  Frankfort,  etc.  R.  R.  Co.  v.  Windsor,  51  Tnd.  238;  Ferguson  v.  Staf- 
ford, 33  Ind.  1G2;  Grouse  v.  Holmnn,  19  Ind.  30. 


VALUE.  229 

petent  to  testify  as  to  the  value  of  the  land  in  controversy. 
This  is  the  principle  in  accordance  with  which  farmers  and 
residents  in  the  neighborhood  of  the  property,  have  been 
held  qualified  in  many  cases  to  testify  as  to  the  value  of  the 
laud  in  their  vicinity.1  It  is  not  necessary  that  the  witness 
should  have  bought  or  sold  land  in  that  vicinity,2  or  should 
have  known  of  sales  of  exactly  such  tracts  as  the  one  in 
question,3  or  that  his  knowledge  of  sales  should  have  been 
personal,4  or  that  it  should  have  been  derived  from  the 
buyer  or  seller  of  the  land  sold.5  And  it  has  been  laid 
down  that,  "The  knowledge  requisite  to  qualify  a  witness 
to  testify  to  his  opinion  of  the  value  of  lands  may  either  be 
acquired  by  the  performance  of  official  duty,  as  by  a  county 
commissioner  or  selectman,  whose  duty  it  is  to  lay  out  pub- 
lic ways,  or  by  an  assessor,  whose  duty  it  is  to  ascertain  the 
value  of  lands  for  the  purpose  of  taxation  ;  or  it  may  be 
derived  from  knowledge  of  sales  and  purchases  of  other 
lands  in  the  vicinity,  either  by  the  witness  himself,  or  by 
other  persons."  6 

In  a  recent  case  in  Rhode  Island  the  court  holds  that 
while  a  farmer  living  in  the  vicinity  of  farming  land,  and 
familiar  with  it,  may,  as  an  expert,  give  his  estimate  of  its 

1  Robertson  v.   Knapp,  35  X.  Y.  91;  Snyder  v.  Western  Un.  R.  R. 
Co.,  25  Mo.  60;  West  Xewbury  v.  Chase,  5  Gray  (Mass.),  421;  Clark  v. 
Baird,  9  X.  Y.  183;  Lelmiicke  v.  St.  Paul,  etc.  R.  R.  Co.,  19  Minn.  464; 
Simmons  v.  St.  Paul,  etc.  R.  R.  Co.,  18  Minn.  184;  Crouse  v.  Holman. 
19  Ind.  30;  Thomas  v.  Mallinckrodt,  43  Mo.  58;  Brainard  v.  Boston,  etc. 
R.  R.  Co.,  12  Gray  (Mass.) ,  407 ;  Hayes  v.  Ottawa,  Oswego,  etc.  R.  R.  Co.% 
54  111.  373 ;  Galena,  etc.  R.  R.  Co.  v.  Haslem,  73  111.  494 ;  Wallace  v.  Finch, 
24  Mich.  255;  Hanover  Water  Co.  v.  Ashland  Iron  Co.,  84  Penn.  St. 
284;  Keithsburg,  etc.  R.  R.  Co.  v.  Henry,  79  111.  290;  Selma,  etc.  R.  R. 
Co.  v.  Keith,  53  Ga.  178;  Hudson  v.  State,  61  Ala.  334;  Milwaukee,  etc. 
R.  R.  Co.  v.  Eble,4  Chand.  (Wis.),  72;  Erd  v.  Chicago,  etc.  R.  R.  Co., 
41  Wis.  64;  Ferguson  v.  Stafford,  33  Ind.  162;  Tate  v.  M.  K.  &  T.  R.  R. 
Co.,  64  Mo.  149;  Russell  v.  Horn  Pond,  etc.  R.  R.  Co.,  4  Gray  (Mass.), 
607;  Stone  v.  Covell,  29  Mich.  362. 

2  Whitman  v.  Boston,  etc.  R.  R.  Co.,  7  Gray  (Mass.),  313;  Lehmicke 
v.  St.  Paul,  etc.  R.  R.  Co.,  19  Minn.  464,  482. 

8  Frankfort,  etc.  R.  R.  Co.  v.  Windsor,  51  Ind.  240. 
4  Hanover  Water  Co.  v.  Ashland  Iron  Co.,  84  Penn.  St.  284. 
6  Whitman  v.  Boston,  etc.  R.  R.  Co.,  7  Gray  (Mass.),  313. 
*  Swan  v.  Middlesex,  101  Mass.  177,  per  Mr.  Justice  Gray. 


230  EXPERT  TESTIMONY. 

value  as  farm  land,  yet  that  his  opinion  generally  of  the 
value  of  such  realty  would  be  inadmissible,  since  the  market 
value  of  such  realty  might  be  much  greater  than  its  agricul- 
tural value.1 

While  a  real  estate  agent  accustomed  to  value  and  sell 
real  property  in  the  city  or  neighborhood  where  the  land  is 
situated,  is  competent  to  testify  in  reference  to  its  value, 
although  he  may  never  have  sold  land  on  the  particular 
street  upon  which  the  land  is  located,2  yet  it  is  essential 
that  he  should  be  acquainted  with  the  value  of  land  in  the 
vicinity  of  the  property  in  question.3  And  it  is  said  that  a 
speculator  in  real  estate,  who  buys  and  sells  real  property 
for  himself,  is  competent,  provided  he  is  conversant  with 
the  property  in  question,  and  with  other  property  of  the 
same  character  in  the  vicinity,  and  knows  at  what  prices 
such  property  is  held  by  persons  owning  and  controlling  it.4 
Where  it  was  desired  to  show  a  depreciation  in  the  value  of 
certain  real  property,  it  was  held  that  the  secretary  of  an 
insurance  company,  who  had  been  in  the  habit  of  examin- 
ing buildings  in  reference  to  insurance,  might  express  the 
opinion  that  the  passage  of  locomotive  engines  within  a  cer- 
tain distance  of  a  building,  would  diminish  the  rent  and 
increase  the  rate  of  insurance  against  fire,  and  that  he 
might  state  that  his  company  had  declined  to  take  the  risk 
at  any  rate  of  insurance  on  applications  for  insurance  on 
buildings  in  that  vicinity.5 

§  163.  Value  of  Annuities. —  Stock  brokers  who  have 
been  engaged  in  buying  and  selling  life  annuities,  and  who 
have  thereby  become  acquainted  with  the  value  and  market 
price  of  annuities,  have  been  allowed  to  testify  as  to  the 
market  price  of  an  annuity  for  the  life  of  a  person  of  a  cer- 
tain age.6  So,  actuaries,  experienced  in  the  business  of 


1  Brown  v.  Providence,  etc.  K.  K.  Co.,  12  R.  I.  23S. 

2  Bristol  County  Savings  Bank  v.  Keavy,  128  Mass.  298. 

3  Haulenbeck  v.  Cronkright,  23  N.  J.  Eq.  413. 

4  Jarvis  v.  Furman,  25  Hun  (N".  Y.) ,  393. 

5  Webber  v.  Eastern  R.  R.  Co.,  2  Met.  (Mass.),  147. 
6Heathcote  v.Paignon,  2  Brown's  Ch.  167, 169. 


VALUE.  231 

life  insurance,  are  permitted  to  testify  as  to  the  value  of 
an  annuity.1  And  an  accountant,  who  was  acquainted  with 
the  business  of  insurance  companies,  has  been  examined  as 
to  the  average  duration  of  human  lives.2  With  the  view  of 
ascertaining  the  probable  duration  of  a  particular  life  at  a 
given  age,  it  is  material  to  know  what  is  the  average  dura- 
tion of  the  life  of  a  person  of  that  age.  «*  The  particular 
life  on  which  an  annuity  is  secured  may  be  unusually 
healthy,  in  which  case  the  value  of  the  annuity  would  be 
greater  than  the  average,  or  it  may  be  unusually  bad,  in 
which  case  the  value  would  be  less  than  the  average  ;  but  it 
must  be  material  to  know  what,  according  to  the  experi- 
ence of  insurance  companies,  the  value  of  an  annuity  se- 
cured on  an  average  life  of  that  age  would  be."  For  the 
purpose  of  determining  this,  the  witnesses  are  permitted  to 
refer  to  standard  tables  used  by  insurance  companies  in  the 
course  of  their  business.3  And  it  has  been  held  that  the 
Carlisle  Tables  of  Mortality,  being  standard  tables  on  this 
subject,  are  admissible  evidence  for  the  purpose  of  shoAving 
the  expectation  of  life  at  a  particular  age.4  The  Northamp- 
ton Tables  have  been  received  for  the  same  purpose.5  And 
in  a  recent  case  in  Kentucky,  in  determining  the  value  of 
the  potential  right  of  dower,  the  court  adopted  the  table 
prepared  by  Professor  Bowditch,  on  that  subject,  declaring 
that  it  furnished  a  safer  and  more  convenient  guide  than  the 


1  Exparte  Whitehead,  1  Merivale,  127,  128;   Ex  parte  Thistlewood,  19 
Vesey,  235;  Heathcote  v.  Paignon,  2  Brown's  Ch.  167, 169;  Griffith  v. 
Spratley,  1  Cox  Ch.  389. 

2  Rowley  v.  London,  etc.  K.  R.  Co.,  8  Exch.  (L.  R.)  221.     In  the  case 
cited  Brett,  J.,  did  not  think  it  necessary  to  say  whether  such  a  witness 
was  competent,  but  thought  it  doubtful,  as  he  was  not  an  actuary. 
Blackburn,  J.,  said  that  as  he  gave  evidence  that  he  was  experienced  in 
the  business  of  life  insurance,  his  opinion  was  admissible. 

3  See  Davis  v.  Marlborough,  2  Swanston,  113,  150;  Nichols  v,  Gould, 
2  Vesey,  423;  Rowley  v.  London,  etc.  R.  Co.,  supra. 

4  Donaldson,  v.  Mississippi,  etc.  R.  R.  Co.,  18  Iowa,  281.;  Simonsonv. 
C.,  R.  I.  &  P.  R.  Co.,  49  Iowa,  87. 

» Schell  v.  Plumb,  55  X.  Y.  598;  Sauter  v.  X.  Y.  Cent.  &  H.  R.  R.  Co., 
13  X.  Y.  Sup.  Ct.  451 ;  Wager  v.  Schuyler,  1  Wend.  (N.  Y.)  553 ;  Jackson 
v.  Edwards,  7  Paige  Ch.  (X.  Y.)  386,  408. 


.232  EXPERT  TESTIMONY. 

opinions  of  witnesses.1  For  the  purpose  of  determining  the 
value  of  the  life  of  a  decedent,  an  expert  may  be  asked, 
•"  From  your  knowledge  of  the  decedent's  age,  habits, 
(health,  and  physical  condition,"  how  long,  in  your  opinion, 
would  he  have  been  useful  to  his  family?2  And  an  expert 
in  life  insurance  may  be  asked  as  to  the  relative  hazard  of 
^different  occupations.3 

§  164.  Value  of  Foreign  Currency  and  Negotiable  Se- 
curities.—  In  order  to  ascertain  what  is  the  lawful  money 
of  a  foreign  country  it  is  considered  unnecessary  that  the 
law  of  such  country,  regulating  the  subject,  should  be  pro- 
duced.4 And  witnesses  who  have  had  business  transactions 
in  such  country,  having  had  occasion  in  that  way  to  learn 
the  value  of  the  currency  in  common  use,  are  competent  to 
testify  as  to  such  value,  and  to  state  its  equivalent  in  our 
own  currency.5  So  it  has  been  held  that  the  value  of  the 
stock  of  a  railroad  company  at  a  specified  date,  could  be 
shown  by  the  testimony  of  one  who  dealt  in  such  stock  at 
-or  near  that  date.6  And  it  has  even  been  held  that  the  tes- 
timony of  a  witness  as  to  the  market  value  of  negotiable 
securities,  at  a  somewhat  remote  period,  was  competent  and 
sufficient  prima  facie  evidence,  although  it  was  founded  on 
a  general  recollection  based  on  his  keeping  the  run  of  the 
market  price  in  consequence  of  being  very  much  interested 
in  the  company  which  issued  the  securities.7 

§  165.  Opinions  of  Merchants  and  Brokers. —  The  ex- 
.perience  which  merchants  and  brokers  acquire  in  the  ordi- 
nary conduct  of  their  business  is  such  as  qualifies  them  to 
testify  as  to  the  value  of  articles  with  which  they  are  re- 
iquired  by  the  necessities  of  their  business  to  be  familiar. 
And  if  in  the  course  of  their  business  they  are  kept  in- 
iformed  as  to  the  market  value  of  any  particular  thing,  by 

J  Lancaster  v.  Lancaster's  Trustees,  78  Ky,  200. 

'2  Pennsylvania  Railroad  Co.  v.  Henderson,  51  Penn  St.  320. 

••3  Hartman  v.  Keystone  Ins.  Co.,  21  Penn.  St.  478. 

'«  Comstock  v.  Smith,  20  Mich.  338. 

3  Kermott  v.  Ayer,  11  Mich.  181;  Comstock  v.  Smith,  supra. 
16  Noonan  v..  Ilsley,  22  Wis.  27. 
'7  Smith  v.  Frost,  42  N.  Y.  Superior  Ct.  87. 


VALUE.  233 

price  current  lists  duly  furnished  them  for  use  in  their  busi- 
ness, opinions  derived  from  such  information  will  be  re- 
ceived in  evidence.1  But  in  an  action  for  work  and  labor 
done,  and  materials  furnished,  it  was  held  that  the  price  list 
itself  could  not  be  received  in  evidence.2  And  there  is  no 
error  in  excluding  the  testimony  of  a  witness,  whose  knowl- 
edge as  to  market  price  was  derived  wholly  from  statements 
of  his  partner  as  to  the  prices  at  which  his  firm  had  sold, 
entries  of  which  it  was  his  duty  to  make  in  the  books  of  the 
firm.3 

1  Whitney  v.  Thacher,  117  Mass.  526.     In  re  Cliquot's  Champagne, 
3  Wall.  114;  In  re  Fennerstein's  Champagne,  3  Wall.  145;  Sisson  v. 
Toledo  R.  R.  Co.,  14  Mich.  489;  Cleveland,  etc.  R.  R.  Co.  v.  Perkins, 
17  Mich.  296;  Sirrine  v.  Briggs,  31  Mich.  443;  Lush  v.  Druse,  4  Wend. 
(X.  Y.)  317;  Terry  v.  McNeil,  58  Barb.  (X.  Y.)  241.   See  Whelan  v. 
Lynch,  60  N.  Y.  469,  and  Schmidt  v.  Herfurth,  5  Robertson  (X.  Y.)  124, 
145. 

2  County  of  Cook  v.  Harms,  10  Brad\v.  (111.)  24. 
3Flynn  v.  Wohl,  10  Mo.  App.  582. 


234  EXPERT  TESTIMONY. 


CHAPTER  IX. 


THE    RELATION    OF    SCIENTIFIC  BOOKS   TO  EXPERT  TESTIMONY. 

SECTION. 

166.  The  Relation  of  Scientific  "Works  to  Expert  Testimony. 

167.  The  Admissibility  of  Scientific  Works  in  Evidence. 

168.  The  Tnadraissibility  of  Medical  Treatises  in  Evidence.     The 

Rule  in  England. 

169.  Their  Admissibility  in  Alabama. 

170.  Their  Inadmissibility  in  Indiana. 

171.  Their  Admissibility  in  Iowa. 

172.  Their  Inadmissibility  in  Maine. 

173.  Their  Inadmissibility  in  Maryland. 

174.  Their  Inadmissibility  in  Massachusetts. 

175.  Their  Inadmissibility  in  Michigan. 

176.  The  Doctrine  in  New  York. 

177.  Their  Inadmissibility  in  Xorth  Carolina. 

178.  Their  Inadmissibility  in  Rhode  Island. 

179.  Their  Inadmissibility  in  Wisconsin. 

180.  Dicta  in  California  and  New  Hampshire— The-  Result  of  the 

Authorities. 

181.  The  Contradiction  of  Experts  by  Medical  Treatises. 

182.  Testing  Knowledge  of  Experts  on  Cross-examination. 

183.  Views  of  "Writers  on  Medical  Jurisprudence  as  to  the  Exclusion 

of  Medical  Treatises. 

184.  Reading  from  Scientific  Books  in  Argument. 

185.  Reading  from  Scientific  Books  in  Argument — The  Subject  Con- 

tinued. 

186.  Reading  the  Testimony  of  Experts  as  Contained  in  Official  Re- 

ports. 

§  166.  The  Relation  of  Scientific  Works  to  Expert 
Testimony. —  As  we  have  already  seen,1  experts  are  per- 
mitted to  express  opinions  on  subjects  connected  with  their 
particular  departments  of  science,  or  of  art,  although  their 
opinions  are  based  on  information  derived  by  them  from 

1  §§  19,  20. 


SCIENTIFIC  BOOKS  TO  EXPERT  TESTIMONY.  235 

the  study  of  books,  and  not  from  their  own  experience  or 
observation.  They  are  also  permitted  to  refresh  their  mem- 
ories by  the  use  of  standard  authorities.1  But  a  marked 
distinction  exists  between  permitting  a  witness  to  refresh 
his  memory  by  reference  to  an  authority  or  writing,  and 
the  introduction  of  the  writing  itself  in  evidence.  It  may 
be  wholly  improper  that  the  writing  should  be  Introduced 
in  evidence,  and  yet  entirely  proper  for  the  witness  to  re- 
fresh his  recollection  by  a  reference  to  it.  An  equally  well 
marked  distinction  exists  between  the  admissibility  of  opin- 
ions based  on  a  study  of  authorities,  of  standard  writings, 
and  the  reception  of  the  writings  themselves  in  evidence. 
It  is  fair  to  assume  that  the  expert  has  weighed  the  asser- 
tions and  opinions  of  the  different  authorities,  and  that  he 
has  reached  an  independent  judgment  thereon.  The  opin- 
ion which  he  expresses  is  given  in  a  court  of  justice,  and 
under  the  solemnity  of  an  oath.  While  it  can  hardly  be 
presumed  that  a  standard  writer  would  give  expression  in 
his  public  writings  to  a  dishonest  opinion,  yet  the  fact  re- 
mains that  the  opinion  was  not  expressed  under  oath,  and 
may  have  subsequently  been  modified.  The  writer  is  not 
presented  in  court.  No  opportunity  is  given  for  his  cross- 
examination,  and  the  jury  cannot  observe  the  witness. 
The  question,  therefore,  arises  are  scientific  works  admis- 
sible in  evidence?  Can  the  opinions  of  scientific  writers,  as 
expressed  in  their  writings,  be  received  in  evidence  as  the 
opinions  of  experts,  or  must  the  writers  themselves  be 
called  as  witnesses,  and  give  expression  to  their  opinions 
under  oath,  in  the  presence  of  the  court,  the  jury,  and  the 
parties?  This  is  an  important  question,  which  we  are  now 
to  consider. 

§  167.  The  Admissibility  of  Scientific  Works  in  Evi- 
dence.—  Attention  has  elsewhere  in  this  work  been  called 
to  the  fact  that  standard  tables  of  mortality  have  been  re- 
ceived in  evidence  for  the  purpose  of  showing  the  expecta- 


1  Taylor  on  Evidence,  1230;  1  Wharton's  Evicl.  438 ;  People  v.  Wheeler, 
9  Pac.  Coast  L.  J.  584 ;  Hoffman  v.  Click,  77  N.  C.  555. 


236  EXPERT  TESTIMONY. 

tioii  of  life  at  a  particular  age.1  There  are  other  instances 
•in  which  scientific  tables  and  works  have  been  received  in 
evidence,  and  which  remain  for  us  briefly  to  notice.  Thus 
in  a  case  in  the  Mayor's  court  of  New  York,  in  the  year 
1816,  it  was  held  that  tide  tables  could  be  received  for  the 
purpose  of  showing  that  the  time  of  high  water  at  New 
York  and  New  London  was  the  same.2  So  in  a  case  in  Mary- 
land in  1880,  the  court  held  that  an  almanac  was  admissible 
in  evidence  for  the  purpose  of  proving  at  what  hour  the 
moon  rose  on  a  certain  night.  "An  almanac,"  said  the 
court,  "  forecasts  with  exact  certainty  planetary  move- 
ments. We  govern  our  daily  life  by  reference  to  the  com- 
putations which  they  contain.  No  oral  evidence  or  proof 
which  we  could  gather  as  to  the  hours  of  the  rising  or  set- 
ting of  the  sun  or  moon,  could  be  as  certain  or  accurate  as 
that  which  we  may  obtain  from  such  a  source.''  3  So  in 
Connecticut  and  California  it  has  been  held  that  an  almanac 
may  be  used  for  this  purpose.4  But  whether  it  could  be  re- 
ceived in  England  for  such  a  purpose  may  be  somewhat 
doubtful.5  It  has  been  said  by  one  of  the  most  distin- 
guished writers  on  the  law  of  evidence  that  "  The  hour  at 
which  the  moon  rose  is  a  fact,  and  it  can  fairly  be  argued 
upon  the  general  principles  of  the  law  of  evidence,  that  the 
best  evidence  of  that  fact  is  the  testimony  of  some  one  who 
observed  its  occurrence."6 

It  has  been  held,  too,  in  this  country,  that  a  record  of 
the  weather,  kept  for  a  number  of  years  at  the  State  Insane 
Asylum,  was  competent  evidence  to  prove  the  temperature 
of  the  weather  on  a  given  day  included  in  such  record.7  Are 

1  §  163,  and  Donaldson  v.  Mississippi,  etc.  R.  R.  Co.,  18  Iowa,  281; 
Schell  v.  Plumb,  55  X.  Y.  598;  Sauter  v.  X.  Y.  Cent.  «t  H.  R.  R.  Co.,  13 
X.  Y.  Sup.  Ct.  451;   Wager  v.  Schuyler,  1  Wend.  (N.  Y.)  553;  Jackson 
v.  Edwards,  7  Paige  Ch.  386,  408. 

2  Green  v.  Aspimvall,  1  City  Hall  Recorder,  14. 

3  Munshower  v.  State,  55  Md.  11. 

4  State  v.  Morris,  47  Conn.  179;  People  v.  Cheekee,  14  Rep.  582. 
*  See  Suttoii  v.  Darke,  5  H.  &  W.  647. 

6  Taylor  on  Evidence,  1230. 

7  Da  Arnvmil  v.  Nreasmith,  32  Mich.  2:31. 


SCIENTIFIC  BOOKS  TO  EXPERT  TESTIMONY.  237 

these  cases  in  accordance  with  the  general  rule,  or  do  they 
constitute  an  exception  to  the  rule?  Do  they  establish  the 
principle  that  scientific  treatises  may  be  received  in  evidence  ? 

§  168.  The  Tnadmissibility  of  Medical  Treatises  in  Evi- 
dence—  The  Rule  in  England. —  The  question  whether 
scientific  treatises  may  be  read  in  evidence,  has  generally 
been  raised  in  cases  where  an  effort  has  been  made  to  intro- 
duce as  evidence  the  opinions  expressed  in  medical  treatises. 
And  it  is  in  this  connection  that  we  shall  now  consider  the 
question.  So  far  as  England  is  concerned  the  rule  was 
definitely  settled  in  that  country  in  the  year  1831,  and  in 
the  well  known  case  of  Collier  v.  Simpson.1  The  action 
was  one  of  slander,  the  defendant  having  charged  that  the 
plaintiff,  who  was  a  physician,  had  prescribed  improper 
medicines  for  a  child  suffering  from  water  on  the  brain. 
The  question  being  whether  certain  prescriptions  Avere 
proper  under  the  circumstances  of  the  case,  counsel  pro- 
posed to  put  in  evidence  certain  medical  books  of  recog- 
nized authority,  to  show  the  received  opinion  of  the  medi- 
cal profession  on  the  subject.  But  Mr.  Chief  Justice  TIN- 
DAL  held  that  medical  treatises  could  not  be  thus  received. 
So  more  recently,  as  late  as  1875,  the  question  was  again 
raised  when  counsel  proposed  to  read  to  the  jury  a  case 
from  Taylor's  Medical  Jurisprudence.  Mr.  Justice  BRETT 
refused,  however,  to  allow  counsel  to  proceed  with  the  read- 
ing, and  said:  "That  is  no  evidence  in  a  court  of  justice. 
It  is  a  mere  statement  by  a  medical  man  of  hearsay  facts  of 
cases  at  which  he  was  in  all  probability  not  present.  I  can- 
not allow  it  to  be  read."  2 

§  109.  Their  Admissihility  in  Alabama. —  Such  treatises 
are  considered  in  this  State  as  admissible  in  evidence,  such  a 
conclusion  having  been  reached  in  the  year  1857,3  and  subse- 
quently adhered  to,  once  in  1801,4  and  again  in  1879 .* 

1  5  Can-  v.  Payne,  73  (24  Eng.  C.  L.  219). 

2  Regu.a  v.  Thomas,  13  Cox's  Cr.  Cases,  77. 

3  Stoudenmeier  v.  Williamson,  29  Ala.  558,  565. 

4  Merkle  v.  State,  37  Ala.  139. 

5  Bates  v.  State,  63  Ala.  30. 


238  EXPERT  TESTIMONY . 

The  court  concluded  that  inasmuch  as  judges  in  determin- 
ing matters  of  law,  could  consult  legal  treatises  of  author- 
ity, the  jury  should  have  the  same  right  to  consult  medical 
treatises  laid  before  them  in  evidence,  for  the  purpose  of 
enabling  them  to  determine  matters  of  fact.  The  books 
themselves  were  said  to  be  as  safe  guides  for  the  jury  as 
the  opinions  derived  from  their  perusal  and  deposed  to  by 
witnesses. 

§  170.  Their  Inadmissibility  in  Indiana. —  Twenty  years 
after  Collier  v.  Simpson  was  decided  in  England,  the  ques- 
tion came  up  in  Indiana,  and  the  authority  of  that  case  was 
fully  recognized  and  followed.  The  circumstances  were  as 
follows  :  It  was  proposed  to  have  a  physician  testify  as  to 
the  effects  of  poison  upon  the  human  system,  his  informa- 
tion being  derived  from  standard  medical  treatises.  There- 
upon the  objection  was  made  that  his  evidence  was  not 
admissible,  but  that  the  authors  themselves  should  be  pro- 
duced as  witnesses,  or  if  dead,  that  their  books  should  be 
offered  in  evidence.  The  court  held  that  the  books  could 
not  be  received,  but  that  the  opinions  of  a  physician  based 
on  them,  were  admissible.1 

§  171.  Their  Admissibility  in  Iowa. —  The  earliest  case 
recognizing  the  right,  to  introduce  medical  treatises  in  evi- 
dence, so  far  as  we  have  been  able  to  discover,  is  that  of 
Bowman  v.  Woods,2  decided  in  the  Supreme  Court  of  Iowa 
in  1848.  The  reasoning  by  which  the  court  reached  its 
conclusion  was  quite  similar  to  that,  which,  as  we  have 
seen,  subsequently  induced  the  Supreme  Court  of  Alabama 
to  lay  down  the  same  rule.  In  an  action  for  malpractice, 
the  defendant  offered  certain  medical  books  in  evidence 
which  competent  witnesses  had  pronounced  standard  works, 
and  from  which  they  declared  they  had  derived  much  of 
their  knowledge.  The  court  said  it  saw  no  reason  for  their 
exclusion.  "  The  opinions  of  an  author  as  contained  in  his 
works,  we  regard  as  better  evidence  than  the  mere  state- 

1  Carter  v.  State,  2  Carter,  619.    See,  too,  Jones  v.  Trustees,  etc.  Ind. 
R.  47. 

2  1  G.  Greene,  441. 


SCIENTIFIC  BOOKS  TO  EX?ERT  TESTIMONY.  239 

ment  of  those  opinions  by  a  witness,  who  testifies  as  to  his 
recollection  of  them  from  former  reading."  In  1865  tho 
court  again  announce  the  same  rule.1  In  a  more  recent  case 
a  Herd  Book  was  held  inadmissible,  as  there  was  no  evi- 
dence by  experts  that  its  correctness  was  recognized  by 
cattle  breeders.2 

§  172.  Their  Inadmissihility  in  Maine. —  The  question 
was  first  considered  in  this  country  in  the  Supreme  Uourt 
of  Maine,  and  it  is  somewhat  curious  that  the  subject  was 
disposed  of  in  this  State  in  the  same  year  in  which  Collier 
v.  Simpson  was  decided  in  England,  and  that  a  similar  con- 
clusion was  reached  in  both  cases,  each  court  being  ignorant 
of  the  ruling  of  the  other.  The  question  was  carefully 
considered,  and  much  stress  was  laid  on  the  fact  that  the 
reception  of  such  works  would  be  to  receive  evidence  not 
sanctioned  by  an  oath,  without  any  opportunity  for  cross- 
examination,  which  was  justly  deemed  a  matter  of  great 
importance  in  any  search  after  truth.  "  The  practice  if  by 
law  allowed,  would  lead  to  endless  inquiries  and  contradic- 
tory theories  and  speculations.  In  a  word,  if  one  book  is 
evidence,  so  is  another,  and  if  all  are  admitted,  it  is  to  be 
feared  that  truth  would  be  lost  in  the  learned  contest  of  dis- 
cordant opinions."3 

§  173.  Their  Inadmissihility  in  Maryland. —  The  rule 
that  medical  treatises  are  inadmissible  in  evidence  was 
adopted  in  Maryland  in  1873,  when  it  was  held  that  the 
rules  prescribed  by  medical  authors  for  making  post-mortem 
examinations  could  not  be  received  in  evidence.  It  was 
said  that  if  it  was  desired  to, show  that  an  examination  had 
not  been  made  by  the  physicians  in  a  skillful  and  proper 
manner,  it  could  .be  done  only  through  the  testimony  of 
witnesses  competent  to  testify  on  that  subject.1  And  the 
doctrine  was  broadly  laid  down  that  medical  treatises  could 
not  be  received  to  sustain  or  contradict  an  expert.  The 

1  Donaldson  v.  The  Mississippi,  etc.  E.  K.  Co.,  IS  Iowa,  291. 
»  Crawford  v.  Williams,  48  Lo\va,  249. 
3  Ware  v.  Ware,  8  Maine,  42. 
<  Davis  v.  State,  38  Md.  15,  36. 


240  EXPERT  TESTIMONY. 

court  has  in  a  case  lately  decided  held  that  a  book  en- 
titled "The  Principles  and  Practice  of  Life  Insurance, " 
containing  the  rules  and  modes  of  adjusting  life  insurance, 
was  not  admissible  in  evidence.1 

§  174.  Their  Inadmissibility  in  Massachusetts. —  A  wit- 
ness who  had  expressed  an  opinion  as  an  expert  that  it  was 
impossible  to  distinguish  human  blood  from  the  blood  of 
animals,  was  asked  whether  he  concurred  with  the  views  ex- 
pressed in  Taylor's  Medical  Jurisprudence  on  that  subject,, 
the  book  being  passed  to  him,  counsel  proposing  that  the 
witness  should  read  therefrom  to  the  jury  a  certain  para- 
graph with  which  he  coincided  in  opinion.  The  court  held 
that  this  could  not  be  done.2  In  a  subsequent  case  counsel 
again  claimed  the  right  to  read  to  the  jury  books  of  medi- 
cal authority,  as  to  any  matter  of  which  medical  experts 
might  testify,  but  the  court  again  denied  the  right.3  These 
cases  were  in  accordance  with  an  earlier  case  in  the  same 
court  in  which  Mr.  Chief  Justice  SHAW,  in  denying  the 
right  to  read  from  medical  treatises,  had  stated  that  facts 
or  opinions  could  not  be  laid  before  a  jury  "except  by  the 
testimony  under  oath  of  persons  skilled  in  such  matters."4 

§  175.  Their  Inadmissibility  in  Michigan. —  There  is  no 
doubt  that  medical  treatises  cannot  be  introduced  in  evi- 
dence in  Michigan.6  "Medical  writers  are  by  no  means  a 
unit  upon  the  various  questions  of  medical  jurisprudence. 
A  passage  may  be  found  in  some  work  favorable  to  a  par- 
ticular opinion,  which  in  another  may  be  successfully  con- 
troverted and  overthrown,  although  not  known  to  counsel 
or  the  court,  who  are  not  presumed  to  be  particularly 
versed  in  that  branch  of  science,  and,  therefore,  the  coun- 
sel should  have  the  opportunity  of  eliciting  from  an  expert 
upon  the  witness  stand,  that  peculiar  information  which  he 


1  Mutual  Life  Ins.  Co.  v.  Bratt,  55  Md.  200. 

2  Commonwealth  v.  Sturtivant,  117  Mass.  122. 
8  Commonwealth  v.  Brown,  121  Mass.  69,  75. 

4  Commonwealth  v.  Wilson,  1  Gray,  337. 

5SeeFraser  v.  Jennison,  42  Mich.  200,  214;  Pinney  v.  Cahill,  12  X. 
W.  Rep.  8G2. 


SCIENTIFIC  BOOKS  TO  EXPERT  TESTIMONY.  241 

alone  is  presumed  to  possess,  and  which  would  be  imparted 
in  language  easily  understood,  and  not  in  those  technical 
terms  so  common  in  medical  books,  where  even  common 
words  are  sometimes  used  in  a  peculiar  manner,  distinct 
from  their  received  meaning  in  the  general  use  of  the  lan- 
guage." 1 

§  176.  The  Doctrine  in  New  York. —  In  New  York  the 
question  does  not  appear  to  have  been  ruled  on  in  either  the 
Court  of  Appeals,  or  in  the  Supreme  Court.  The  New 
York  Superior  Court,  however,  as  early  as  1858,  laid  down 
the  rule  that  the  matters  alleged  in  standard  treatises,  must 
be  proved  in  the  same  manner  as  any  other  facts,  and  that 
the  books  themselves  were  no  evidence  of  the  truth  of  the 
assertions  of  fact  contained  in  them.2 

§  177.  Their  Inadmissibility  in  North  Carolina.— The 
subject  has  been  twice  considered  in  this  State,  and  in  each 
instance  a  conclusion  was  reached  adverse  to  the  admissibil- 
ity  of  such  treatises  in  evidence.  It  was  first  presented  in 
1854,  and  the  conclusion  was  grounded  upon  the  fact  that 
the  writers  had  not  been  sworn  and  could  not  be  cross- 
examined.3  It  was  again  before  the  court  in  1877,  when 
much  importance  was  attached  to  the  fact  that  medicine  is 
an  inductive  science,  and  that  medical  treatises  are  based  on 
•data  constantly  shifting  with  new  discoveries  and  more  ac- 
curate observation.  "The  medical  work  which  was  a 
*  standard '  last  year  becomes  obsolete  this  year.  Even  a 
second  edition  of  the  work  of  the  same  author  is  so  changed 
by  the  subsequent  discovery  and  grouping  together  of  new 
facts,  that  what  appeared  to  be  a  logical  deduction  in  the 
first  edition,  becomes  an  unsound  one  in  the  next.  So  that 
the  same  author  at  one  period  may  be  cited  against  himself 
at  another."  4 

§  178.  Their  Inadmissibility  in  Rhode  Island. —  In 
holding  such  treatises  inadmissible  in  Rhode  Island,  the 

1  Barrick  v.  City  of  Detroit,  1  Mich.  N.  P.  135. 

2  Harris  v.  Panama  R.  R.  Co.,  3  Bosvv.  1,  18. 
8  Melvin  v.  Easley,  1  Jones  Law,  338. 

4  Huffman  v.  Click,  77  N.  C.  55. 

(16) 


242  EXPERT  TESTIMONY. 

court  remarked  that,  "  scientific  men  are  admitted  to  give 
their  opinions  as  experts,  because  given  under  oath ;  but 
the  books  which  they  write  containing  them,  are,  for  want 
of  such  an  oath,  excluded."  l  It  was  said  that  such  books 
were  not  rendered  any  the  more  admissible  by  the  fact  that 
the  experts  had  read  passages  from  them,  to  which  in  cross- 
examination  they  had  been  referred,  and  in  relation  to  which 
they  had  answered  questions.  And  counsel  cannot  read 
from  them  for  the  purpose  of  contradicting  the  experts. 

,§  179.  Tlieir  Inadinissibility  in  Wisconsin. — In  a  case 
decided  in  1848,  counsel  had  proposed  to  read  to  the  jury 
certain  standard  medical  works  "  as  evidence,  or  by  way  of 
instruction  to  the  jury."  Objection  was  made,  which  the 
trial  court  sustained.  "This  is  a  matter,"  said  the  Supreme 
Court,  "generally  within  the  discretion  of  the  court,  and, 
therefore,  not  a  subject  of  a  writ  of  error.  In  many  cases, 
no  doubt,  it  would  be  proper  to  allow  books  of  science 
to  be  read,  though  generally,  such  a  practice  would  lead  to 
evil  results."  2 

But  in  a  very  recent  case  the  same  court  has  overruled  its 
earlier  decision  that  the  adinissibility  of  such  treatises  is  dis- 
cretionary with  the  trial  court ;  and  placed  itself  in  line 
with  the  weight  of  authority  on  this  subject,  and  declared 
the  rule  to  be  that  medical  books  cannot  be  read  to  the 
jury  as  evidence,  although  such  books  have  been  shown 
by  expert  testimony  to  be  standard  works  in  the  medical 
profession.3 

§  180.  Dicta  in  California  and  Xew  Hampshire  —  The 
Result  of  the  Authorities. —  In  a  case  in  California  Mr. 
Justice  McKixsTRY,  in  delivering  the  opinion  of  the  court, 
declared  that  medical  treatises  were  not  admissible  in  evi- 
dence, and  said  that  if  such  treatises  were  to  be  held  admis- 
sible, the  question  at  issue  might  be  tried,  not  by  the  testi- 
mony, but  upon  excerpts  from  works  presenting  partial 

1  State  v.  O'Brien,  7  R.  I.  336,  338. 

2  Luniiig  v.  State,  1  Chandler,  178. 

3  Stilling  v.  Town  of  Thorp,   to  appear  in  54  Wis. ;   Knoll  v.  State, 
The  Reporter,  Sept.  20th,  1882,  p.  381. 


SCIENTIFIC  BOOKS  TO  EXPERT  TESTIMONY.  243 

views  of  variant  and  perhaps  contradictory  theories.1  The 
question  in  the  case,  however,  was  whether  counsel  had  a 
right  to  read  from  such  treatises  in  argument,  so  that  the 
above  expression  of  opinion  must  be  regarded  as  dic£a.  In 
another  part  of  this  work,  and  in  another  connection,  we 
have  had  occasion  to  quote  dicta  to  the  same  effect  from  an 
opinion  of  the  Supreme  Court  of  New  Hampshire.2  The 
result  of  the  cases  on  this  subject  shows  clearly  that  the 
very  decided  weight  of  authority  is  against  the  admissibility 
in  evidence  of  standard  medical  treatises.  Such  is  the  rule 
in  England,  Indiana,  Maine,  Maryland,  Massachusetts, 
Michigan,  North  Carolina,  Rhode  Island  and  Wisconsin, 
supported  by  dicta  in  California  and  New  Hampshire,  and 
opposed  by  decisions  in  Alabama  and  Iowa. 

The  objections  to  the  reception  of  such  books  in  evidence 
have  been  concisely  and  forcibly  stated  by  a  distinguished 
writer  as  follows:  "In  the  first  place,  a  sound  induction 
last  year  is  not  necessarily  a  sound  induction  this  year,  and 
as  a  matter  of  fact,  works  of  this  class,  when  they  do  not 
become  obsolete,  are. altered,  in  material  features  from 
edition  to  edition,  so  that  we  cannot  tell,  in  citing  from  even 
a  living  author,  whether  what  we  read  is  not  something  that 
this  very  author  now  rejects.  In  the  second  place,  if  such 
book?  are  admitted  as  a  class,  those  which  are  compilations 
must  be  admitted  as  well  as  those  which  contain  the  result 
of  original  research  ;  the  purely  speculative  must  come  in 
side  by  side  with  the  empirical ;  so  that  if  such  treatises  are 
admitted  at  all,  it  will  be  impossible  to  exclude  those  which 
are  secondary  evidence  of  the  facts  they  state.  In  the 
third  place,  such  books,  without  expert  testimony,  cannot 
generally  be  pointed  to  the  concrete  case  ;  with  expert  tes- 
timony, they  become  simply  part  of  such  testimony,  and 
lose  their  independent  substantive  character  as  books. 

"  In  the  fourth  place,  the  authors  of  such  books  do  not 
write  under  oath,  and  hence  the  authorities  on  which  they 

1  People  v.  Wheeler,  9  Pacific  Coast  Law  J.,  581,  583.     (1882.) 

2  See  pp.  31  ami  33,  for  an  extract  from  Dole  v.  Johnson,   50  X.  II. 
432.     And  see  Ordway  v.  Haynes,  50  X.  H.  159. 


244  EXPERT  TESTIMONY . 

rest  cannot  be  explored,  nor  their  processes  of  reasoning 
tested. 

"  Lastly,  such  books  are  at  best  hearsay  proof  of  that 
which  living  witnesses  could  be  produced  to  prove."  l 

§  181.  The  Contradiction  of  Experts  by  Medical  Treat- 
ises.— It  is  clear  then,  that  the  weight  of  authority  is  against 
the  admission  of  medical  treatises  iu  evidence.  And  we 
think  it  equally  clear  that  the  weight  of  authority  is  sus- 
tained by  the  better  reason.  The  Supreme  Court  of  North 
Carolina,  which,  as  we  have  seen,  holds  medical  treatises  in- 
admissible in  evidence,  nevertheless  recognizes  an  exception 
to  the  rule.  It  is  there  laid  down  that  if  a  physician  has 
cited  such  works  in  his  testimony,  those  works  may  be  put 
in  evidence  for  the  purpose  of  discrediting  him.2  Such  a 
conclusion  has  also  been  reached  in  Wisconsin,  on  principle 
and  without  affirming  the  correctness  of  a  former  decision 
of  the  same  court,  holding  the  admission  of  s'uch  treatises 
discretionary  with  the  trial  court.3  So  in  a  case  decided  in 
Michigan  iu  1882,  there  was  a  similar  ruling,  and  the  court 
said:  "He  (the  expert)  borrowed  credit  for  the  accuracy 
of  his  statement  on  referring  his  learning  to  the  books 
before  mentioned,  and  by  implying  that  he  echoed  the 
standard  authorities  like  Dodd.  Under  the  circumstances 
it  was  not  improper  to  resort  to  the  book,  not  to  prove  the 
facts  it  contained,  but  to  disprove  the  statement  of  the  wit- 
ness, and  enable  the  jury  to  see  that  the  book  did  not  con- 
tain what  he  had  ascribed  to  it.  The  final  purpose  was  to 
disparage  the  opinion  of  the  witness,  and  hinder  the  jury 
from  being  imposed  urjon  by  a  false  light.  The  case  is  a 
clear  exception  to  the  rule  which  forbids  the  reading  of 
books  of  inductive  science  as  affirmative  evidence  of  the 
facts  treated  of."  4 

These  cases  are  certainly  distinguishable  from  the  case  in 
Massachusetts,  in  which  it  was  held  that  an  expert  could  not 

1  Wharton 's  Evidence,  §  665. 

2  Huffman  v.  Click,  77  X.  C.  55. 

3  City  of  Kipon  v.  Bittel,  30  Wis.  614. 

*  Pinney  v.  Cahill,  14  The  Eeporter,337;  s.  c.,  12  N.  W.  Reporter,  SG2. 


SCIENTIFIC  BOOKS  TO  EXPERT  TESTIMONY.  245 

read  from  a  treatise  a  paragraph  laying  down  propositions 
in  which  he  concurred.1  But  in  Maryland,2  and  also  in 
Rhode  Island,3  it  seems  to  be  laid  down  that  such  treatises 
cannot  be  read  from  to  contradict  an  expert  in  such  cases. 
It  seems,  however,  these  cases  to  the  contrary  notwith- 
standing, that  an  exception  should  be  recognized  to  the  gen- 
eral rule,  and  that  medical  treatises  may  be  introduced  in 
evidence  for  the  sole  purpose  of  contradicting  an  expert  who 
has  been  permitted  to  testify,  on  his  direct  examination, 
that  they  contained  certain  statements,  which  are  not  to  be 
found  therein. 

§•  182.  Testing  Knowledge  of  Experts  on  Cross-Exam- 
ination.—  Another  distinction  has  been  taken  in  a  case  de- 
cided in  Illinois  in  1878,  in  which  the  right  of  counsel  is 
sustained,  to  read,  on  the  cross-examination  of  a  physician, 
paragraphs  from  standard  authors  treating  of  the  disease 
of  which  he  had  stated  the  deceased  died,  at  the  same  time 
asking  him  whether  he  agreed  with  the  •statements  therein 
contained.4  This  the  court  considered  to  be  different  from 
reading  the  books  to  the  jury  as  evidence  in  the  case. 
Counsel  had  a  right,  said  the  court,  to  test  the  knowledge 
of  the  expert  by  any  fair  means  that  promised  to  elicit  the 
truth.  "It  will  be  conceded  it  might  be  done  by  asking 
proper  and  pertinent  questions,  and  what  possible  difference 
could  it  make  whether  the  questions  were  read  out  of  a 
medical  book,  or  framed  by  counsel  for  that  purpose.  *  * 
Assuming  to  be  familiar  with  standard  works  that  treat  of 
delirium  tremens,  it  was  not  unfair  to  the  witness  to  call  his 
attention  to  the  definitions  given  in  the  books,  of  that  par- 
ticular disease,  and  ask  him  whether  he  concurred  in  the 
definitions.  How  could  the  knowledge  of  the  witness  of 
such  subjects  be  more  fully  tested?  That  is  in  no  just 
sense  reading  books  to  the  jury  as  evidence,  or  for  the  pur- 
pose of  contradicting  the  witness."  It  seems  doubtful 

1  Commonwealth  v.  Stuvtivant,  117  Mass.  122. 

2  Davis  v.  State,  38  Mil.  15. 

»  State  v.  CTBrien,  7  R.  I.  336,  338. 

4  Conn.  M.  L.  Ins.  Co.  v.  Ellis,  Adm'r.,  89  111.  516. 


2i6  EXPERT  TESTIMONY. 

whether  the  distinction  which  the  court  undertook  to  draw 
in  this  case  was  not,  after  all,  a  distinction  without  a  differ- 
ence. For  how  was  the  knowledge  of  the  witness  tested, 
but  by  comparing  his  answers  with  the  statements  read 
from  the  book  in  the  presence  of  the  jury?  And  what  was 
this  but  practically  introducing  the  book  in  evidence  as  a 
standard  to  discredit  the  witness  if  he  disagreed  therewith? 
The  recognition  of  such  a  principle  enables  counsel,  under 
the  color  of  a  cross-examination  of  an  opposing  witness,  to 
practically  introduce  affirmative  evidence  in  his  own  behalf 
from  medical  authorities.  For  while  the  books  are  not  for- 
mally offered  in  evidence,  an  impression  may  be  made  on 
the  minds  of  the  jury  which  will  be  equally  effective. 

§  183.  Views  of  AVriters  on  Medical  Jurisprudence  as 
to  the  Exclusion  of  Medical  Treatises. —  The  medical  ex- 
perts seem  to  have  been  inclined  to  disprove,  if  not  to  actu- 
ally resent,  the  exclusion  of  medical  treatises  from  the 
evidence.  In  the  famous  case  of  Spencer  Cowper,  when 
objection  was  made  to  a  reference  to  medical  authorities, 
Dr.  Crell,  a  witness  in  the  case,  is  reported  to  have  ex- 
claimed :  "  My  lord,  it  must  be  reading,  as  well  as  a  man's 
own  experience,  that'  will  make  any  one  a  physician  ;  for 
without  the  reading  of  books  in  that  art,  the  art  itself  can- 
not be  attained  to.  I  humbly  conceive,  that  in  such  a  diffi- 
cult case  as  this,  we  ought  to  have  a  great  deference  for  the 
reports  and  opinions  of  learned  men  ;  neither  do  I  see  any 
reason  why  I  should  not  quote  the  fathers  of  rny  profession  in 
this  case,  as  well  as  you,  gentlemen  of  the  long  robe,  quote 
Coke  upon  Littleton  in  others."  l 

In  Beck's  Medical  Jurisprudence  the  learned  author  stren- 
uously maintains  the  right  of  the  professional  witness  to 
refer  to  medical  treatises.  He  has  manifestly  fallen  into 
error  in  laying  down  the  following  proposition  : 

"In  this  country,  I  believe,  the  objection  to  medical 
fcooks  has  never  been  made.  There  is  scarcely  a  case  of 
any  note,  where  testimony  has  been  required,  in  which  fre- 

1  2  Beck's  Med.  Jurisprudence,  919;  Hargrave's  St.  Trials. 


SCIENTIFIC  BOOKS  TO  EXPERT  TESTIMONY.  247 

quent  reference  has  not  been  had  to  medical  works.  They 
are  quoted  and  commented  on  by  the  bench  and  bar,  and  by 
the  professional  witnesses."  1 

The  later  writers  on  medical  jurisprudence  have  taken  a 
more  just  view  of  this  question,  and  appreciate  the  reason- 
ableness and  justice  of  the  rule.  In  Elwell's  Medical 
Jurisprudence  we  find  that  distinguished  writer  saying :  "The 
medical  witness,  therefore,  has  no  just  grounds  of  com- 
plaint, because  his  books  are  not  received  in  evidence.  The 
<?ourt  honors  his  individual  opinion  as  of  higher  value  than 
that  of  an  outside  author.  The  court  presumes,  that  from 
reading  these  authors,  close  thought  and  actual  observation 
and  experience,  the  witness  under  oath,  subject  to  cross- 
examination,  will  more  certainly  enlighten  the  case  than  if 
it  depends  upon  the  published  opinions  of  authors,  who 
perhaps  had  a  favorite  theory  to  support,  or  an  old  preju- 
dice to  influence  them,  on  a  question  or  subject  constantly 
advancing.  Then  the  author  himself  may  have  changed  his 
opinions  since  the  book  was  written."  2 

So  in  Ordonaux's  Jurisprudence  of  Medicine  it  is  said : 
"The  reason  of  this  rule  is  founded,  in  the  principle,  that 
the  expert  is  called  to  express  a  personal  opinion  upon  a 
state  of  facts  of  variable  interpretation,  and  if  a  book 
could  pronounce  it  as  well,  it  would  be  superfluous  to  call 
him.  *  *  *  The  justice  of  excluding  scientific  books 
from. the  field  of  evidence  becomes  immediately  apparent, 
when  we  reflect  that  they  deal  necessarily  only  with  univer- 
sal propositions,  and  inasmuch  as  every  particular  case 
wears  a  complexion  of  its  own,  it  is  indispensable  to  its  cor- 
rect interpretation  that  some  living  witness,  skilled  in  expe- 
rience, and  able  to  detect  laws  of  common  agreement, 
should  be  called  in  as  an  expert  umpire.  As  no  dictionary 
of  human  thoughts  will  ever  be  written,  so  no  dictionary  of 
physical  laws  will  ever  be  compiled,  that  shall  provide  with 
strictest  fidelity,  the  necessary  interpretation  for  all  the 
variously  complex  and  conflicting  manifestations  of  muta- 

1  2  Beck's  Mecl.  Jurisprudence,  919. 

2  Elwell's  Mecl.  Jurisprudence,  335. 


248  EXPEET  TESTIMONY. 

tional  phenomena,  not  to  speak  of  the  more  puzzling  sphere 
of  antinomies  and  apparent  contradictions."  l 

§  184.  Reading  from  Scientific  Books  in  Argument. — 
The  same  objections  which  have  been  deemed  sufficient  to 
exclude  scientific  treatises  as  evidence,  would  seem  to  be 
equally  potent  against  the  right  of  counsel  to  read  extracts 
therefrom  as  a  part  of  their  argument  to  the  jury.  It  is. 
difficult  to  see  how  any  just  distinction  can  be  made  between, 
the  two  cases.  And  it  is  not  believed  that  any  such  right 
will  be  recognized  by  any  court  which  maintains  the  inad- 
missibility  of  the  treatises  in  evidence.  We  think  the  better 
rule  is  not  to  allow  counsel  to  read  to  the  jury  as  a  part  of 
their  argument  extracts  from  scientific  works,  though  shown 
to  be  standard  authorities.  Such  is  the  rule  in  England,  as 
we  shall  presently  see,  and  such  is  the  rule  in  this  country 
as  recognized  by  the  better  authorities.  There  are,  how- 
ever, some  cases  to  the  contrary,  which  we  shall  first  con- 
sider. 

Iii  Connecticut,  where  the  question  of  the  admissibility 
of  treatises  in  evidence  has  not  yet  been  determined,  the 
right  of  counsel  is-  recognized  to  read  extracts  from  such 
treatises  as  by  the  testimony  of  experts  have  been  accepted 
as  authority.2  Counsel  it  seems  had  been  permitted  by  tacit 
consent  for  a  long  series  of  years,  in  that  State,  to  exercise 
that  right.  The  court,  therefore,  decided,  when  the  right 
was  formally  questioned,  that  the  practice  must  be  regarded 
as  having,  by  repetition,  hardened  into  a  rule. 

In  Indiana  the  doctrine  was  stated  in  an  early  case  as  fol- 
lows :  "It  would,  no  doubt,  be  improper  to  permit  matters 
which  are  objectionable  as  evidence,  to  be  introduced  in  evi- 
dence in  that  way.  That  is,  if  the  extracts  referred  to  con- 
tained the  opinions  or  expositions  of  learned  or  scientific 
witnesses  upon  a  point  in  issue,  and  such  extracts  were  in- 
admissible when  offered  as  evidence  during  the  introduction 
of  testimony  by  the  parties,  the  court  should  not  have  per- 


1  Ordonanx's  Jurisprudence  of  Medicine,  153,  154. 

2  State  v.  Hoyt,  46  Conn.  330. 


SCIENTIFIC  BOOKS  TO  EXPERT  TESTIMONY.  249 

mitted  them  to  be  read  at  any  time.  But  if  the  extracts 
were  merely  argumentative  and  contained  no  opinions  or  ex- 
positions, which  could  be  regarded  as  properly  matters  of 
'evidence,  we  cannot  perceive  any  valid  objection  to  their 
being  read  or  adopted  as  argument,  subject,  of  course, 
to  the  instructions  of  the  court  as  to  the  law  of  the 
case."1  To  the  same  purpose  are  the  decisions  in  Ohio2 
and  Texas,3  as  we  understand  them.  In  a  subsequent  case 
in  Indiana,4  and  another  in  Delaware,*  it  has  been  held  * 
proper  to  allow  counsel  to  read  from  standard  medical 
authorities,  the  jury  being  instructed  that  the  extract  was  not 
to  be  regarded  as  evidence.  The  objections  to  the  prac- 
tice pointed  out  in  the  later  and  better  considered  cases  do 
not  seem  to  have  occurred  to  the  courts  announcing  these 
opinions. 

§  185.  Keading  from  Scientific  Books  in  Argument  — 
The  Subject  Continued. —  In  a  case  in  England,  where 
counsel  in  his  address  to  the  ]'ury  attempted  to  quote  from  a 
work  on  surgery,  it  was  held  he  was  not  justified  in  doing 
so,  and  ALDERSON,  B.,  said  ;  »«  You  surely  cannot  contend 
that  you  may  give  the  book  in  evidence,  and  if  not,  what 
right  have  you  to  quote  from  it  in  your  address,  and  do 
that  indirectly  which  you  would  not  be  permitted  to  do  in 
the  ordinary  course?  "  6 

In  Massachusetts  when  counsel  for  the  defendant  in 
his  opening  to  the  jury,  contending  that  cribbing  was  not 
an  unsoundness  in  a  horse,  but  a  habit,  proposed  to  read 
from  a  work  on  Veterinary  Surgery,  a  description  of  the 
habit  "as  a  better  mode  of  showing  what  cribbing  was, 
but  not  as  evidence  in  the  case,"  it  was  held  no  error  to 
refuse  to  allow  him  to  proceed.7  So  in  an  earlier  case 

1  Jones  v.  Trustees,  etc.,  Indiana  R.,  47. 

2  Legg  v.  Drake,  21  Ohio,  286. 

3  Wade  v.  De  Witt,  20  Texas,  398. 

4  Harvey  v.  State,  40  Ind.  516. 

5  State  v.  West,  1  Houston  Cr.  Gas.  371. 

6  The  Queen  v.  Crouch,  1  Cox  Cr.  Cas.  94.    And  see  Regina  v.  Taylor, 
13  Cox  Cr.  Cases,  77. 

7  Washburn  v.  Cuddihy.  8  Gray,  430. 


250  EXPERT  TESTIMONY. 

the  same  court  denied  the  right,  on  the  ground  that  the 
extracts  would,  in  effect,  be  used  as  evidence.1 

In  North  Carolina  the  question  has  been  carefully  consid- 
ered, and  the  language  of  the  court  in  denying  the  right, 
warrants  repetition  in  this  connection.  "  It  sounds  plausi- 
ble to  say,  you  do  not  read  it  as  evidence,  but  that  you 
adopt  it  as  part  of  your  argument.  But  in  so  doing  the 
counsel  really  obtains  from  it  all  the  benefits  of  substantive 
evidence  fortified  by  its  '  standard '  character.  He  first 
proves  by  the  medical  expert  that  the  work  is  one  of  high 
character  and  authority  in  the  profession,  and  then  he  says 
to  the  jury,  '  here  is  a  book  of  high  standing,  written  by 
one  who  has  devoted  his  talents  to  the  study  and  explana- 
tion of  this  special  subject  of  nervous  diseases.  He  ex- 
presses my  views  with  so  much  more  force  than  I  can,  that 
I  will  read  an  extract  from  his  work  and  adopt  it  as  a  part 
of  my  argument.'  It  is  evident  that  the  effect  of  this 
manoeuvre  is  to  corroborate  the  evidence  of  the  medical  ex- 
pert, or  other  witnesses,  by  the  authority  of  a  great  name 
testifying,  but  not  under  oath,  to  the  same  thing  as  the  ex- 
pert, but  with  this  difference,  that  the  author  has  not  heard 
the  evidence  upon  which  the  expert  based  his  opinion."  2 

And  in  Michigan  the  Supreme  Court  has  lately  sustained 
the  trial  court  in  refusing  to  allow  counsel  in  his  opening  to 
read  a  passage  from  Griesenger  on  Mental  Diseases,  to  the 
effect  that  grief,  loss  of  fortune  and  disappointed  ambition 
were  among  the  causes  of  insanity.3 

So  in  a  recent  case  in  the  Circuit  Court  of  the  United 
States  for  the  Northern  District  of  New  York,  when  coun- 
sel stated  that  he  desired  to  read  from  Ericson  on  Railway 
Injuries,  as  a  part  of  his  argument,  Mr.  Justice  WALLACE 
declared  that  he  could  not  read  any  portion  or  extract  from 
the  book.4 

1  Ashworth  v.  Kittridge,  12  Gush.  194. 

2  Huffman  v.  C'ick,  77  N".  C.  54. 

8  Fraser  v.  Jennison,  42  Mich.  206,  314. 

4  Robinson  v.  New  York  Central,  etc.  R.  R.  Co.,  Albany  Law  .!.,  Oct. 
29th,  1881,  p.  357. 


SCIENTIFIC  BOOKS  TO  EXPERT  TESTIMONY.  251 

The  latest  case  in  which  the  subject  has  been  considered 
was  decided  in  the  Supreme  Court  of  California  in  1882. 
Counsel  in  the  trial  court  was  permitted,  against  objection, 
to  read  as  a  portion  of  his  argument  from  a  book  called 
*'  Browne's  Medical  Jurisprudence  of  Insanity."  No  testi- 
mony was  introduced  to  show  that  this  was  a  standard 
authority,  and  while  stress  was  laid  on  this  fact,  the  reason- 
ing of  the  court  leads  to  the  conclusion  that  had  such  testi- 
mony been  introduced  it  could  not  have  affected  the  judg- 
ment announced.  Judgment  was  reversed,  and  a  new  trial 
granted.1  It  seems  difficult  to  understand  why  any  stress 
should  be  laid  on  the  fact  that  the  work  was  not  shown  to 
be  a  standard  authority.  The  right  to  read  from  the  work 
at  all  is  predicated  upon  the  fact  that  counsel  has  adopted 
the  extract  as  his  own,  and  made  it  a  part  of  his  argument. 
The  theory  is  that  it  comes  before  the  jury,  not  as  the  opinion 
of  the  writer,  for  as  such  it  would  be  inadmissible,  but  as 
the  opinion  or  argument  of  counsel.  The  right  of  counsel, 
therefore,  to  make  the  argument  cannot  depend  upon  the 
fact  that  it  is  sustained  by  standard  authorities,  or  by  any 
authorities  at  all.  This  fact  the  court  overlooked,  although 
it  reached  a  correct  conclusion  on  the  facts. 

§  18(5.  Reading  the  Testimony  of  Experts  as  Contained 
in  Official  Reports. —  It  sometimes  happens  that  expert 
testimony  given  in  another  case  is  set  out  at  length  in  the 
official  reports,  appearing  either  in  the  decision  of  the  court, 
or  in  the  statement  of  the  case  by  the  reporter.  While  the 
opinions  of  the  experts  have  in  such  cases  been  expressed 
under  oath,  counsel  have  no  right  to  make  use  of  them  in 
another  case,  as  no  opportunity  is  afforded  in  such  case  for 
any  cross-examination.  Such  a  case  arose  in  Illinois,  where 
the  State's  attorney  undertook  to  read  to  the  jury  on  a 
murder  trial,  the  testimony  of  a  professor  of  chemistry,  as 
found  in  an  official  report  of  another  case,  concerning  the 
symptoms  of  poisoning  by  arsenic.  This  was  pronounced 
to  be  the  height  of  injustice,  and  judgment  was  reversed.2 

1  People  v.  Wheeler,  9  Pac.  Coast  Law  J.  581. 

2  Yoe  v.  People,  49  111.  410,  412. 


252  EXPERT  TESTIMONY. 


CHAPTER  X 


COMPENSATION  OF  EXPERTS. 
SECTION. 

187.  Statutory  Provisions  Concerning  the  Compensation  of  Experts. 

188.  The  Effect  of  Making  Extra  Compensation. 

189.  Experts    need  not  Make  a    Preliminary  Examination,  unless 

Special  Compensation  is  Made. 

190.  Whether  Special  Compensation  must  be  Made  to  Experts  Testi- 

fying as  Such. 

191.  Opinions  of  "Writers  on  Medical  Jurisprudence  —  As  to  Addi- 

tional Compensation. 

192.  American  Cases  Favoring  Extra  Compensation. 

193.  American  Cases  Denying  the  Right  to  Extra  Compensation. 

194.  Extra  Compensation  Allowed  in  England. 

195.  Special  Compensation  to  Experts  Employed  by  the  State  in 

Criminal  Cases. 

196.  Special  Compensation  to  Experts  Summoned  for  the  Defense  — 

Paid  out  of  the  Public  Treasury. 

§  187.  Statutory  Provisions  Concerning  the  Compensa- 
tion of  Experts. —  In  some  of  the  States  the  law  expressly 
provides  that  when  a  witness  is  summoned  to  testify  as  an 
expert,  he  shall  be  entitled  to  extra  compensation.  Such  a 
provision  may  be  found  in  the  laws  of  Iowa,  of  North  Car- 
olina, and  of  Rhode  Island.  They  are  as  follows  : 

Iowa:  Witnesses  called  to  testify  only  to  an  opinion 
founded  on  special  study  or  experience  in  any  branch  of 
science,  or  to  make  scientific  or  professional  examinations, 
and  state  the  result  thereof,  shall  receive  additional  com- 
pensation, to  be  fixed  by  the  court,  with  reference  to  the 
value  of  the  time  employed,  and  the  degree  of  learning  or 
skill  required."  i 

1  Code  of  1873,  §  3814.    See  Snyder  v.  Iowa  City,  40  Iowa,  646. 


COMPENSATION  OF  EXPERTS.  253 

North  Carolina:  ''Experts  when  compelled  to  attend 
and  testify,  shall  be  allowed  such  compensation  and  mileage 
as  the  court  may,  in  its  discretion,  order."  l 

Rhode  Island:  "  In  addition  to  the  fees  above  provided, 
witnesses  summoned  and  testifying  as  experts  in  behalf  of 
the  State  before  any  justice  of  the  Supreme  Court,  trial 
justice  or  coroner,  may  be  allowed  and  paid  such  sum  as 
such  justice  of  the  Supreme  Court,  trial  justice  or  coroner 
may  deem  just  and  reasonable :  Provided,  that  the  allow- 
ance so  made  by  any  trial  justice  or  coroner,  shall  be  sub- 
ject to  the  approval  of  a  justice  of  the  Supreme  Court."  2 

In  Indiana,  on  the  other  hand,  is  has  been  provided  by 
statute  that  experts  may  be  compelled  to  testify  to  an  opin- 
ion without  any  extra  compensation.  The  provision  is  as 
follows:  "A  witness  who  is  an  expert  in  any  art,  science, 
trade,  profession,  or  mystery,  may  be  compelled  to  appear 
and  testify  to  an  opinion,  as  such  expert,  in  relation  to  any 
matter,  whenever  such  opinion  is  material  evidence,  relevant 
to  any  issue  on  trial  before  a  court  or  jury,  without  payment 
or  tender  of  compensation  other  than  the^er  diem  and  mile- 
age allowed  by  law  to  witnesses,  under  the  same  rules  and 
regulations  by  which  he  can  be  compelled  to  appear  and  tes- 
tify to  his  knowledge  of  facts  relevant  to  the  same  issue."  3 

In  the  absence  of  all  statutory  provision  authorizing 
it,  the  compensation  of  experts,  beyond  the  regular  witness 
fees,  is  not  a  necessary  disbursement,  and  cannot  be  taxed 
as  a  part  of  the  costs.  It  is  considered  as  having  been  in- 
curred for  the  party's  own  benefit,  and  is  no  more  a  dis- 
bursement in  the  cause  than  the  fees  paid  to  an  attorney."  * 

§  188.  The  Effect  of  Making  Extra  Compensation. —  It 
is  undoubtedly  the  practice  in  all  important  cases,  for  the 
parties  calling  experts,  or  professional  witnesses,  to  pay 
them  an  additional  compensation.  And  it  is  not  considered 

1  Laws  of  1871,  ch.  139,  §  13.    See  State  v.  Dollar,  66  X.  C.  626. 
*  Public  Statutes  (1882),  p.  733,  §  15. 

3  Indiana  Kevised  Statutes  (1881),  p.  94,  §  504. 

4  Mask  v.  City  of  Buffalo,  X.  Y.  Ct.  of  App.,  Dec.  1881,  13  Keporter, 
251 .    And  see  Hayues  v.  Mosher,  15  How.  Pr.  216. 


254  EXPERT  TESTIMONY. 

contrary  to  the  policy  of  the  law,  that  these  witnesses 
should  be  specially  feed.  For  if  special  compensation  was 
not  made  or  permitted,  the  testimony  of  such  witnesses 
could  not  be  procured  without  great  pecuniary  loss,  and 
perhaps  could  not  be  secured  at  all.  While  the  question  as 
to  the  amount  paid,  or  agreed  to  be  paid  in  such  cases,  can- 
not affect  in  the  least  the  regularity  of  the  trial,  yet  it  is 
stated  that  it  may,  perhaps,  properly  affect  the  credit  of  the 
witness  with  the  jury.1 

§  189.  Experts  Need  not  Make  a  Preliminary  Examina- 
tion, unless  Special  Compensation  is  Made. —  An  expert 
cannot  be  compelled  to  make  any  preliminary  investigation 
of  the  facts  involved  in  a  case,  in  order  to  enable  him  to 
attend  on  the  trial  and  give  a  professional  opinion.  For 
instance,  if  the  State  desires  the  opinion  of  medical  experts 
as  to  the  cause  of  death,  it  cannot  compel  them  to  make  a 
post  mortem  examination  of  the  body  of  the  deceased,  for 
the  purpose  of  qualifying  them  to  express  an  opinion  as  to 
what  was  the  cause  of  death.2  And  it  has  been  said  that  an 
expert  cannot  be  required  to  attend  during  the  entire  trial, 
for  the  purpose  of  attentively  considering,  and  carefully 
listening  to  the  testimony,  in  order  that  he  may  be  qualified 
to  express  a  deliberate  opinion  upon  such  testimony.3  In  all 
such  cases  special  compensation  should  be  made. 

§  190.  Whether  Special  Compensation  Must  he  Made 
to  Experts  Testifying  as  Such. —  There  can  be  no  doubt 
that  professional  men  are  not  entitled,  in  this  country,  to 
claim  any  additional  compensation  when  testifying  as  ordi- 
nary witnesses  to  facts  which  happened  to  fall  under  their 
observation.4  But  another  question  arises,  when  they  are 
summoned  to  testify  as  to  facts  of  science  with  which  they 
have  become  familiar  by  means  of  special  study  and  inves- 
tigation, and  to  express  opinions  based  upon  the  skill 

1  See  People  v.  Montgomery,  13  Abb.  Pr.  (N.  S.)  207,  240. 

2  See  Summers  v.  State,  5  Texas  Ct.  of  App.  374. 

3  See  People  v.  Montgomery,  13  Abb.  Pr.  (X.  S.)  220. 

4  Snyder  v.  Iowa  City,  40  Iowa,  646.    And  see  Bnchman  v.  State,  59 
Ind.  1. 


COMPENSATION  OF  EXPERTS.  255 

acquired  from  such  researches,  as  to  conclusions  which 
ought  to  be  drawn  from  certain  given  facts.  Whether  they 
can  be  compelled  to  testify  in  such  cases,  when  no  other 
compensation  has  been  tendered  than  the  usual  fees  of  wit- 
nesses testifying  to  ordinary  facts,  is  a  point  upon  which 
the  cases  are  not  in  harmony.  In  this  country  the  cases  are 
so  nearly  balanced,  that  the  question  must  be  regarded  as 
still  an  open  one.  But  in  England  it  seems  to  be  settled  that 
additional  compensation  is  required.  The  practical  impor- 
tance of  the  question  requires  that  the  subject  be  examined 
somewhat  at  length. 

§  11)1.  Opinions  of  Writers  on  Medical  Jurisprudence 
as  to  Additional  Compensation. —  And  before  examining 
the  decisions  of  the  courts,  attention  is  called  to  the  opin- 
ions of  the  writers  on  Medical  Jurisprudence.  For,  while 
these  opinions  cannot  be  regarded  as  authoritative,  they  are 
important,  and  entitled  to  the  respectful  consideration  of 
the  profession  and  the  courts.  In  Ordonaux's  Jurisprudence 
of  Medicine,1  that  learned  and  distinguished  writer  says  : 
"  It  is  evident  that  the  skill  and  professional  experience  of 
a  man  are  so  far  his  individual  capital  and  property,  that  he 
cannot  be  compelled  to  bestow  it  gratuitously  upon  any 
party.  Neither  the  public,  any  more  than  a  private  person, 
have  a  right  to  extort  services  from  him,  in  the  line  of  his 
profession,  without  adequate  compensation.  On  the  witness 
stand,  precisely  as  in  his  office,  his  opinion  may  be  given  or 
withheld  at  pleasure ;  for  a  skilled  witness  cannot  be  com- 
pelled to  give  an  opinion,  nor  committed  for  contempt  if  he 
refuse  to  do  so.  Whoever  calls  for  an  opinion  from  him  in 
chief,  is  under  obligation  to  remunerate  him,  since  he  has  to 
that  extent  employed  him  professionally  ;  and  the  expert,  at 
the  outset,  may  decline  giving  his  opinion  until  the  party 
calling  him  either  pays  or  agrees  to  pay  him  for  it.  When, 
however,  he  has  given  his  opinion,  he  has  now  placed  it 
among  the  res  gestce,  and  cannot  decline  repeating  it  or  ex- 
plaining it  on  cross-examination.  Once  uttered  to  the 

1  §§  114,115. 


256  EXPERT  TESTIMONY. 

public  ear  of  the  court,  it  passes  among  the  facts  in 
evidence." 

So  in  Beck's  Medical  Jurisprudence  the  eminent  author, 
in  considering  this  subject,  comments  as  follows : 

"  If  the  duties  on  which  I  have  enlarged  are  important  to 
the  community,  in  promoting  the  proper  administration  of 
justice,  ought  not  the  individuals  engaged  in  them  to 
receive  adequate  compensation?  I  advert  to  this,  not  only 
because  it  is  just  in  principle,  but  because  it  would  remove 
all  imputation  of  volunteering  in  criminal  cases.  No  one 
can  refuse  being  a  witness  when  legally  summoned  ;  every 
one,  I  presume,  may  decline  the  dissection  of  a  dead  body, 
or  the  chemical  examination  of  a  suspected  fluid ;  and  yet 
there  is  not,  I  believe,  an  individual  attending  on  any  of  our 
courts,  who  is  not  paid  for  his  time  and  services,  with  the 
exception  of  such  as  are  engaged  in  these  investigations. 
*  *  *  It  is  quite  time  that  the  medical  profession  in 
this  country  should  rouse  itself  to  a  demand  of  its  just 
rights."1 

§  192.  American  Cases  Favoring  Extra  Compensa- 
tion.—  The  earliest  of  the  American  cases  upon  this  subject 
seems  to  have  arisen  in  the  District  Court  of  the  United 
States  for  the  District  of  Massachusetts,  in  1854.  The 
question  came  up  before  SPEAGUE,  J.,  in  the  following  man- 
ner :  During  a  trial  upon  an  indictment,  a  motion  for  a 
capias  was  made  by  the  district  attorney,  for  the  purpose 
of  bringing  in  a  witness  subpoenaed  to  act  as  an  interpreter 
of  some  German  witnesses,  but  who  had  refused  or  neg- 
lected to  attend.  In  answer  to  this  application,  the  court 
said  :  "A  similar  question  has  heretofore  arisen,  and  I  have 
declined  to  issue  process  to  assist  in  such  cases.  When  a 
person  has  knowledge  of  any  fact  pertinent  to  the  issue  to 
be  tried,  he  may  be  compelled  to  attend  as  a  witness.  In 
this  all  stand  upon  an  equal  ground.  But  to  compel  a  per- 
son to  attend,  merely  because  he  is  accomplished  in  a  par- 
ticular, science,  art,  or  profession,  would  subject  the  same 

1  Beck's  Medical  Jurisprudence,  920,  921. 


COMPENSATION  OF  EXPERTS  257 

individual  to  be  called  upon  in  every  cause  in  which  any 
question  in  his  department  of  knowledge  is  to  be  solved. 
Thus,  the  most  eminent  physician  might  be  compelled, 
merely  for  the  ordinary  witness  fees,  to  attend  from  the 
remotest  part  of  the  district,  and  give  his  opinion  in  every 
trial  in  which  a  medical  question  should  arise.  This  is  so 
unreasonable,  that  nothing  but  necessity  can  justify  it.  The 
case  of  an  interpreter  is  analogous  to  that  of  an  expert.  It 
is  not  necessary  to  say  what  the  court  would  do  if  it  ap- 
peared that  no  other  interpreter  could  be  obtained  by  rea- 
sonable effort.  Such  a  case  is  not  made  as  the  foundation 
of  this  motion .  It  is  well  known  that  there  are  in  Boston 
many  native  Germans,  and  others  skilled  in  both  the  Ger- 
man and  English  languages,  some  of  whom,  it  may  be  pre- 
sumed, might,  without  difficulty,  be  induced  to  attend  for 
an  adequate  compensation."  l 

The  question  came  before  the  Supreme  Court  of  Indiana  in 
1877,  in  Buchman  v.  The  /State,2  the  statutory  provision 
above  noted  not  having  been  enacted  at  that  time,  and  that 
court  held  that  while  a  physician  or  surgeon  could  be  required 
to  attend  as  a  witness  to  facts  without  other  compensation 
than  that  provided  by  law  for  other  witnesses,  yet  he  could 
not  be  required  to  testify  as  to  his  professional  opinion, 
without  the  compensation  of  a  professional  fee.  In  the 
opinion  of  the  court  the  professional  knowledge  of  an  attor- 
ney or  physician  is  to  be  regarded  in  the  light  of  property, 
and  his  professional  services  are  no  more  at  the  mercy  of 
the  public,  as  to  remuneration,  than  are  the  goods  of  the 
merchant,  or  the  crops  of  the  farmer,  or  the  wares  of  the 
mechanic.  "  When  a  physician  testifies  as  an  expert,  by 
giving  his  opinion,  he  is  performing,"  says  the  court,  "a 
strictly  professional  service.  To  be  sure,  he  performs  that 
service  under  the  sanction  of  an  oath.  So  does  the  lawyer, 
when  he  performs  any  services  in  a  cause.  The  position  of 
a  medical  witness,  testifying  as  an  expert,  is  much  more 
like  that  of  a  lawyer  than  that  of  an  ordinary  witness,  tes- 

1  In  the  matter  of  Roelker,  1  Sprague,  276. 
a  59  Indiana,  1. 

(17) 


258  EXPERT  TESTIMONY. 

tifying  to  facts.  The  purpose  of  his  service  is  not  to  prove 
facts  in  the  cause,  but  to  aid  the  court  or  jury  in  arriving  at 
a  proper  conclusion  from  facts  otherwise  proved."  The 
court  then  goes  on  to  say  that  if  physicians  or  surgeons  can 
be  compelled  to  render  professional  services  by  giving  their 
opinions  on  the  trial  of  causes,  without  compensation,  then 
an  eminent  physician  or  surgeon  my  be  compelled  to  go  to 
any  part  of  the  State,  at  any  and  all  times,  to  render  such' 
service  without  other  compensation  than  is  afforded  by  the 
ordinary  witness  fees.  And  this  the  court  does  not  think 
he  can  be  compelled. to  do.  This  conclusion  is  based  both 
upon  general  principles  of  law,  and  the  Constitution  of  the 
State,  which  provides  that  "  no  man's  particular  services 
shall  be  demanded  without  just  compensation." 

The  latest  case  in  which  this  subject  has  been  considered 
seems  to  be  the  case  of  the  United  States  v.  Howe,  recently 
decided  in  the  United  States  District  Court  for  the  Western 
District  of  Arkansas.1  In  this  case,  which  was  a  prosecution 
for  murder,  a  physician  summoned  as  an  expert,  being 
sworn  refused  to  testify,  unless  first  paid  a  reasonable  com- 
pensation for  giving  the  results  of  his  skill  and  experience. 
The  court  declined  to  regard  this  refusal  as  a  contempt  of 
court.  The  distinction  was  sustained  between  a  witness 
called  to  depose  to  a  matter  of  opinion  depending  on  his 
skill  in  a  particular  profession  or  trade,  and  a  witness  called 
to  depose  to  facts  which  he  saw.  When  he  has  facts  within 
his  knowledge,  the  public  have  a  right  to  those  facts,  but 
the  skill  and  professional  experience  of  a  man  are  so  far  his 
individual  capital  and  property,  that  he  cannot  be  compelled 
to  bestow  them  gratuitously  upon  any  party.  That  the 
public  cannot,  any  more  than  a  private  person  extort  ser- 
vices from  a  person  in  the  line  of  his  profession  or  trade 
without  adequate  compensation. 

§  193.  American  Cases  Denying  the  Right  to  Extra 
Compensation. —  A  different  conclusion  to  that  reached  in 
the  foregoing  cases  was  arrived  at  in  the  Supreme  Court  of 

1 12  Central  Law  Journal,  193. 


COMPENSATION  OF  EXPERTS.  259 

Alabama  in  1875,  in  Ex  parte  Dement.1  The  prisoner  on 
trial  was  charged  with  murder,  and  the  physician,  after  tes- 
tifying that  he  had  seen  the  deceased  after  he  had  received 
the  wounds  which  the  prosecution  asserted  had  produced 
death,  was  asked  to  state  the  nature  and  character  of  the 
wound  received,  and  its  probable  effect.  This  he  declined  to 
do  upon  the  ground  that  "  he  had  not  been  remunerated  for 
his  professional  opinion,  nor  had  compensation  for  his  pro- 
fessional opinion  been  promised  or  secured."  A  fine  was 
thereupon  imposed  upon  him  for  contempt  of  court.  A 
motion  to  have  the  fine  set  aside  upon  the  ground  that  the 
court  could  not  compel  him  to  testify  as  a  professional 
expert  until  compensation  for  his  professional  opinion  had 
been  first  made  or  secured,  having  been  overruled,  the  case 
was  taken  on  appeal  to  the  Supreme  Court,  which  affirmed 
the  ruling.  In  their  decision,  after  nil  examination  of  the 
authorities,  the  court  say  :  "It  will  be  noticed  that  it  has 
not  been  adjudged  in  any  of  the  cases  cited,  that  a  physi- 
cian or  other  person  examined  as  an  expert,  is  entitled  to 
be  paid  for  his  testimony  as  for  professional  ojnnions. 
The  reports  contain  nothing  to  this  effect.  The  English 
cases  only  indicate,  and  it  is  implied  by  the  decision  of 
Judge  SPRAGUE  (In  the  matter  of  Roelker)*  that  persons 
summoned  to  testify  as  experts  ought  to  receive  compensa- 
tion for  their  loss  of  time.  And  it  is  to  be  inferred  that  the 
judges  delivering  some  of  the  opinions  thought  the  time  of 
such  a  witness  ought  to  be  valued,  in  the  language  of  the 
English  statute,  '  according  to  his  countenance  and  calling.' 
But  it  is  not  intimated  by  any  of  them,  that  a  physician, 
when  testifying,  is  to  be  considered  as  exercising  his  skill 
.and  learning  in  the  healing  art,  which  is  his  high  vocation  ; 
or  that  a  counsellor  at  law,  in  the  same  situation,  is  exert- 
ing his  talents  and  requirements  in  professionally  investi- 
gating and  upholding  the  rights  of  a  client.  If  this  were 
so,  each  one  should  be  paid  for  his  testimony  as  a  witness, 


1  53  Alabama,  380. 

-  Sprngue's  Beei.«ions.  270. 


260  EXPERT  TESTIMONY. 

as  he  is  paid  by  clients,  or  patients,  according  to  the  impor- 
tance of  the  case  and  his  own  established  reputation  for 
ability  and  skill.  But  in  truth  he  is  not  really  employed  or 
retained  by  any  person.  And  the  evidence  he  is  required 
to  give  should  not  be  given  with  the  intent  to  take  the  part 
of  either  contestant  in  the  suit,  but  with  a  strict  regard  to 
the  truth,  in  order  to  aid  the  court  to  pronounce  a  correct 
judgment."  It  is  to  be  observed  that  this  case  was  decided 
two  years  prior  to  the  case  of  Buchman  v.  The  /State,  in 
which  the  right  to  extra  compensation  was  grounded,  not 
upon  the  loss  of  time,  upon  which  the  Alabama  court  com- 
ments disapprovingly,  but  upon  the  ground  that  professional 
knowledge  constitutes  property  of  which  he  cannot  be  de- 
prived without  just  compensation. 

In  1879,  the  question  came  up  before  the  Court  of 
Appeals  of  Texas  in  Summer  v.  State.1  In  this  case,, 
the  defendant,  being  on  trial  for  murder,  the  State  called  a 
medical  practitioner,  one  Dr.  Spohn,  who  testified  that  he 
had  attended  the  deceased,  and  had  made  a  post  mortem  ex- 
amination, but  declined  to  state  the  cause  of  his  death.  In 
his  testimony  he  said:  "I  found  the  deceased  breathing, 
but  unconscious  ;  had  a  contusion  upon  the  left  side  of  the 
head,  but  no  exterior  evidence  of  fractured  skull ;  removed 
the  patient  to  town,  and  attended  him  until  the  next  day, 
when  he  died ;  after  death,  made  a  post  mortem  examina- 
tion, but  I  decline  to  state  the  cause  of  the  man's  death,  as 
my  knowledge  was  obtained  by  professional  skill  and  from 
the  deductions  of  experience,  which  I  consider  my  own, 
property,  and  which  the  county  of  Nueces  has  persistently 
refused  to  pay  for.  I  have  no  knowledge  of  the  actual 
cause  of  the  man's  death,  save  through  the  post  mortem 
examination  alluded  to."  The  trial  court  sustained  this 
refusal  to  disclose  the  knowledge  thus  acquired,  upon  the 
ground  that  not  having  been  paid,  he  could  not  be  com- 
pelled -to  testify  as  to  the  same.  But  the  Court  of  Appeals 
viewed  the  matter  in  a  different  light,  and  expressed  itself 

1  5  Texas  Court  of  Appeals,  374. 


COMPENSATION  OF  EXPERTS.  261 

as  follows  :  "  The  court  may  compel  a  physician  to  testify 
as  to  the  result  of  a  post  mortem  examination  ;  and  it  is  to 
be  regretted  that  a  member  of  a  profession  so  distinguished 
for  liberal  culture  and  high  sense  of  honor  and  duty  should 
refuse  to  testify  in  a  cause  pending  before  the  courts  of  his 
country,  involving  the  life  and  liberty  of  a  fellow  being,  and 
the  rightful  administration  of  the  laws  of  a  common  coun- 
try. Dr.  Spohn  has  doubtless  been  misled,  in  taking  the 
position  he  did,  by  the  misconception  of  certain  writers  on 
medical  jurisprudence." 

The  court  then  refers  to  Ex  parte  Dement,  and  concludes 
as  follows  :  "  A  medical  expert  could  not  be  compelled  to 
make  a  post  mortem  examination  unless  paid  for  it ;  but  an 
examination  having  already  been  made  by  him,  he  could  be 
compelled  to  disclose  the  result  of  that  examination." 

§  194.  Extra  Compensation  Allowed  in  England. —  In 
Betts  v.  Clifford,1  Lord  CAMPBELL  declared  that  a  scientific 
witness,  or  expert,  was  not  bound  to  attend  upon  being 
served  with  a  subpoena,  and  that  he  ought  not  to  be  sub- 
poenaed. If  the  witness,  however,  knew  any  question  of 
fact,  he  might  be  compelled  to  attend,  but  he  could  not  be 
compelled  to  attend  to  speak  merely  to  matters  of  opinion. 
The  same  distinction  was  also  taken  in  Webb  v.  Page,2 
which  was  a  case  in  which  a  witness  had  been  called  by  the 
plaintiff  to  testify  as  to  the  damage  sustained  by  certain 
cabinet  work,  and  the  expense  necessary  to  restore  or 
replace  the  injured  articles.  The  witness  having  demanded 
compensation,  Mr.  Justice  MAULE  said  :  "  There  is  a  dis- 
tinction between  the  case  of  a  man  who  sees  a  fact,  and  is 
called  to  prove  it  in  a  court  of  law,  and  a  man  who  is 
selected  by  a  party  to  give  his  opinion  on  a  matter  on  which 
he  is  peculiarly  conversant  from  the  nature  of  his  employ- 
ment in  life.  The  former  is  bound,  as  a  matter  of  public 
duty,  to  speak  to  a  fact  which  happens  to  have  fallen  within 
his  own  knowledge  ;  without  such  testimony  the  course  of 
justice  must  be  stopped.  The  latter  is  under  no  such  obli- 

1  Warwick  Lent  Assizes,  1858. 

2  1  Car.  &  K.  25. 


262  EXPERT  TESTIMONY. 

gation ;  there  is  no  such  necessity  for  his  evidence,  and  the 
party  who  selects  him  must  pay  him."  According  to  these- 
cases,  therefore,  an  expert  is  under  no  obligation  to  testify 
as  to  matters  of  opinion,  at  least  in  civil  cases.  If  his  tes- 
timony is  desired,  the  party  desiring  it  must  first  render  him 
such  compensation  as  his  services  are  worth.  It  is  also  to- 
be  noticed  that,  in  England,  it  has  been  held,  in  civil  cases,, 
at  least,  that  a  professional  man,  even  though  called'  to  tes- 
tify to  facts,  and  not  to  opinions,  is  entitled  to  extra  com- 
pensation on  the  higher  scale  allowed  under  the  statute  of 
Elizabeth,1  which  provides  that  the  witness  must  "  have 
tendered  to  him,  according  to  his  countenance  or  calling,, 
his  reasonable  charges."  In  a  case  decided  in  1862,  the 
expenses  of  an  attorney,  called  as  a  witness,  but  who  did 
not  give  professional  evidence,  were  allowed  by  the  Master,, 
on  the  higher  scale  allowed  professional  witnesses.  This 
allowance  was  held  proper  on  motion  to  show  cause,  and 
Mr.  Chief  Justice  EARL  said :  "  We  do  not  approve  of  the 
rule  which  is  said  to  prevail  in  criminal  cases,  that  if  a  sur- 
geon is  called  to  give  evidence  not  of  a  professional  charac- 
ter he  is  only  to  have  the  expenses  of  an  ordinary  witness. 
We  think  the  Master  was  quite  right  in  allowing  the 
expenses  of  this  witness  on  the  higher  scale."  2  So  also  in 
Turner  v.  Turner?  the  same  principle  was  applied  by  the- 
vice-chancellor  in  the  case  of  a  barrister.  The  theory 
seems  to  be  that  the  time  of  professional  men  is  more  valu- 
able than  the  time  of  non-professional  men,  and  that  they 
should  be  compensated  accordingly.  It  has  been  suggested 
that  the  rule  is  a  hard  one,4  and  it  maybe  considered  doubt- 
ful whether  it  can  stand  the  test  of  examination.  It  seems 
more  correct  to  regard  professional  and  scientific  knowledge 
in  the  light  of  property  which  the  public  have  no  right  to- 
use  without  making  a  proper  compensation. 


1  5  Eliz.  c.  9. 

2  Parkinson  v.  Atkinson,  31  L.  J.  (x.  s.)  C.  P.  199. 

3  5  Jur.  (N.  s.)  839. 

4  See  Lonergan  v.  Royal  Exchange  Assurance,  7  Blng.  725,  727;  Col- 
lins v.  Godefroy,  1  Barn.  &  Adol.  930. 


COMPENSATION  OF  EXPERTS.  2(53 

§  195.  Special  Compensation  to  Experts  Employed  by 
the  State  in  Criminal  Cases. —  And  in  the  absence  of  ex- 
press statutory  provision  authorizing  it,  it  has  been  the 
practice  in  many  of  the  States,  in  criminal  cases,  to  make  a 
proper  compensation  to  the  experts  summoned  by  the  gov- 
ernment. As  lawyers  who  are  employed  by  the  govern- 
ment to  assist  in  the  prosecution  of  the  criminal,  receive  a 
special  compensation,  so  the  experts  receive  a  special  com- 
pensation ;  and  this  is  allowed  under  certain  statutory  pro- 
visions authorizing  the  allowance  of  accounts  for  necessary 
services  and  expenses. 

§  196.  Special  Compensation  to  Experts  Summoned  for 
the  Defence  Paid  out  of  the  Public  Treasury. —  The  Su- 
preme Court  of  Massachusetts,  in  1870,  had  its  attention 
called  to  the  right  to  allow  the  prisoner's  counsel,  in  the 
case  of  an  indictment  for  murder,  to  tax  as  a  part  of  the 
costs  to  be  paid  out  of  the  public  treasury,  extra  compensa- 
tion to  the  experts  employed  by  him,  as  a  part  of  the  neces- 
sary expense  of  the  trial,  and  as  such  to  be  allowed  under 
the  statutes  referred  to  in  the  preceding  section.  As  the 
question  is  an  important  one,  we  quote  from  the  decision, 
allowing  such  taxation,  as  follows  : 

"  Whenever  the  prosecuting  officer  thinks  the  interests  of 
justice  require  it,  we  do  not  doubt  that  he  is  authorized,  by 
the  statutes  above  mentioned,  to  employ  experts  to  make 
proper  investigations  for  ascertaining  the  truth  of  a  case, 
and  that  it  is  proper  for  him  in  some  capital  cases  to  enable 
the  prisoner's  counsel  to  make  similar  investigations,  and 
to  procure  the  attendance  of  experts  at  the  trial,  if  the  pris- 
oner is  not  able  to  do  so  ;  and  the  court  is  authorized  to 
allow  a  reasonable  compensation  to  such  experts  for  their 
services,  both  for  attending  the  trial,  and  for  their  prior 
investigations.  This  is  not  on  the  ground  that  the  statute 
has  given  to  a  prisoner  the  right  to  such  aid  at  the  expense 
of  the  public  treasury  ;  but  on  the  ground  that  it  is  for  the 
interest  of  the  Commonwealth,  in  the  case  then  before  the 
court,  that  all  proper  investigations  should  be  made,  in 


264  EXPERT  TESTIMONY 

order  to  guard  against  the  danger  of  doing  injustice  to  the 
prisoner  in  a  case  where  he  is  exposed  to  so  great  a  penalty. 
*  *  *  We  do  not  think  the  prosecuting  officer  or  the 
court  would  be  authorized  to  allow  the  charges  of  all  such 
persons  as  the  prisoner  would  have  a  right  to  employ  as 
experts  at  his  own  expense,  without  regard  to  their  charac- 
ter, or  to  the  need  of  employing  them  in  the  case.  But  the 
assent  of  the  prosecuting  officer  should  be  obtained  before- 
hand to  the  employment  of  such  experts  as  may  be  selected 
and  agreed  upon,  or,  in  the  case  of  his  refusal  to  assent, 
application  should  be  made  to  the  court  to  appoint  the 
experts.  This  would  be  the  more  proper  course  of  proceed- 
ing, if  the  prisoner  desires  to  have  the  experts  called  by 
him  paid  out  of  the  public  treasury."  l 

1  Attorney-General  Petitioner,  104  Mass.  537. 


APPENDIX 


OF  THE  OPINIONS  OF  THE  COURTS  AS  TO  THE  VALUE  OF 
EXPERT    TESTIMONY. 


It  has  been  considered  advisable  to  note  the  opinions  which  have  been 
expressed  on  the  value  of  expert  testimony.  Some  of  these  opinions 
refer  to  the  value  of  such  testimony  in  general,  and  are  to  be  found  in 
appendix  "A"';  others  relate  to  the  value  of  such  testimony  in  the 
investigation  of  handwriting,  and  are  to  be  found  in  appendix  "  B" ;  and 
others  still  refer  to  the  value  of  the  testimony  of  medical  experts,  and 
are  to  be  found  in  appendix  "C". 

While  this  work  has  been  running  through  the  press,  a  few  additional 
cases  of  value  relating  to  expert  testimony  have  appeared.  References  to 
these  cases  will  be  found  in  apppendix  "D",  with  references  to  the 
appropriate  sections  in  the  body  of  the  work. 

4iA." — EXPERT  TESTIMONY  IN  GENERAL. 

Taylor  on  Evidence.—"  Perhaps  the  testimony  which  least  deserves 
credit  with  a  jury  is  that  of  skilled  witnesses.  These  gentlemen  are 
usually  required  to  speak,  not  to  facts,  but  to  opinions]  and  where  this 
is  the  case,  it  is  often  quite  surprising  to  see  with  what  facility,  and  to 
what  an  extent,  their  views  can  be  made  to  correspond  with  the  wishes  or 
the  interests  of  the  parties  who  call  them.  They  do  not,  indeed,  wilfully 
misrepresent  what  they  think,  but  their  judgments  become  so  warped  by 
regarding  the  subject  in  one  point  of  view,  that,  even  when  conscien- 
tiously disposed,  they  are  incapable  of  expressing  a  candid  opinion. 
Being  zealous  partisans,  their  belief  becomes  synonymous  with  faith  as 
denned  by  the  Apostle,  and  it  too  often  is  but  'the  substance  of  things 
hoped  for,  the  evidence  of  things  not  seen.'  "  (§  58.) 

And  "  as  experts  usually  come  with  a  bias  on  their  minds  to  support 
the  cause  on  which  they  are  embarked,  little  weight  will,  in  general,  be 
attached  to  the  evidence  which  they  give,  unless  it  be  obviously  based  on 
sensible  reasoning."  (§  1877.) 

Best  on  Evidence. —  There  is  "  no  evidence  the  value  of  which  varies  so 
immensely  as  that  now  under  consideration,  and  respecting  which  it  is 


266  EXPERT  TESTIMONY. 

so  difficult  to  lay  down  any  rules  beforehand.  *  *  *  It  would  not  be 
easy  to  over-rate  the  value  of  the  evidence  given  in  many  difficult  and 
delicate  inquiries,  not  only  by  medical  men  and  physiologists,  but  by 
learned  and  experienced  persons  in  various  branches  of  science,  art  and 
trade,  *  *  *  and  there  can  be  no  doubt  that  testimony  is  daily 
received  in  our  courts  as  'scientific  evidence,'  to  which  it  is  almost 
profanation  to  apply  the  term,  as  being  revolting  to  common  sense,  and 
inconsistent  with  the  commonest  honesty  on  the  part  of  those  by  whom 
it  is  given/'  §  514. 

Bedfield  on  Wills.—  "•  Medical  experts  are  beginning  to  be  regarded 
much  in  the  light  of  hired  advocates,  and  their  testimony,  as  nothing 
more  than  a  studied  argument  in  favor  of  the  side  for  which  they  have 
been  called.  So  uniformly  has  this  proved  true,  in  our  limited  expe- 
rience, that  it  would  excite  scarcely  less  surprise  to  tindan  expert  called 
by  one  side,  testifying  in  any  particular,  in  favor  of  the  other  side,  than 
to  find  the  counsel  upon  either  side  arguing  against  their  clients,  in  favor 
of  their  antagonists."  Vol.  I.,  p.  103. 

Rolls  Court  of  England. —  In  a  case  where  surve3rors  were  sworn  as  to 
the  value  of  certain  real  estate,  the  Master  of  the  Rolls  said:  "I  have 
frequently  had  to  comment  upon  the  unsatisfactory  nature  of  the  evi- 
dence of  value  given  by  surveyors.  Men  of  equal  knowledge  and 
respectability  are  constantly  found  giving  very  contradictory  evidence 
on  this  subject,  and  always  more  or  less  favorable  to  the  side  on  whose 
behalf  they  are  adduced.  This  probably  is  inevitable,  but  the  conclu- 
sion to  which  1  hare  been  compelled  to  come  is,  that  in  all  these  cases,  I 
place  very  little  reliance  on  the  evidence  of  surveyors,  who  know  before- 
hand on  which  side  their  evidence  is  intended  or  desired  to  be  used." 
(Waters  v.  Thorn,  22  Beavan,  547,  556.) 

Supreme  Court  of  United  States.— In  a  case  involving  the  infringement 
of  a  patent,  Mr.  Justice  Grier  declares:  '-Experience  has  shown  that 
opposite  opinions  of  persons  professing  to  be  experts,  may  be  obtained 
to  any  amount;  and  it  often  occurs  that  not  only  many  days,  but  even 
weeks  are  consumed  in  cross-examinations,  to  test  the  skill  or  knowledge 
of  such  witnesses,  and  the  correctness  of  their  opinions,  wasting  the 
time  and  wearying  the  patience  of  both  court  and  jury,  and  perplexing, 
instead  of  elucidating  the  questions  involved  in  the  issue."  (Winans  v. 
N.  Y.,etc.  R.  R.  Co.,  21  How.  88, 101). 

Supreme  Court  of  Michigan.-*-" The  experience  of  Courts  with  the  tes- 
timony of  experts  has  not  been  such  as  to  impress  them  with  the  convic- 
tion that  the  scope  of  such  proofs  should  be  extended."  (People  v. 
Morrigan,  29  Mich.  1,  8,  per  Campbell,  J.) 

Supreme  Court  of  Maine.— "Any  one  who  has  listened  to  the  'vain  bab- 
blings and  oppositions  of  science  so  called,'  which  swell  the  record  of 
the  testimony  of  experts  when  the  hopes  of  a  party  depend  rather  upon 
mystification  than  enlightenment,  will  see  the  wisdom  of  the  rule  (ex- 
cluding opinions),  and  look  carefully  to  the  legitimacy  of  any  exceptions 
that  may  be  offered."  (State  v.  Watson,  65  Me,  74,  per  Barrows,  J.) 

And,  "  While  the  opinion  of  the  experienced,  skillful  and  scientific 
witness,  who  has  a  competent  knowledge  of  the  facts  involved  in 


APPENDIX.  267 

the  case  on  which  he  speaks,  affords  essential  aid  to  courts  and  juries^ 
that  of  unskillful  pretenders,  quacks  and  mountebanks,  who  at  times, 
assume  the  character  of  experts,  not  unfrequently  serves  to  becloud 
and  lead  to  erroneous  conclusions.  The  rules  under  which  this  class  of 
testimony  is  received  should  not,  in  my  opinion,  be  relaxed.  Such,  I 
believe,  would  be  the  judgment  of  every  intelligent  person  who  has  had 
any  considerable  experience  in  courts  of  justice."  (Heald  v.  Thing,  45 
Me.  392,  398,  per  Rice,  J.) 

"B."— •  EXPERT  TESTIMONY   IN   HANDWRITING. 

Enfjlish  and  Scotch  Courts.— Lord  Campbell,  speaking  in  the  House  of 
Lords,  declares:  "Hardly  any  weight  is  to  be  given  to  the  evidence  of 
what  are  called  scientific  witnesses;  they  come  with  a  bias  on  their 
minds  to  support  the  cause  in  which  they  are  embarked."  (Tracy  Peer- 
age, 10  Cl.  &  Fin.  154, 191.) 

And  Lord  President  Boyle  in  the  Scotch  courts  says :  "A  set  of  engra- 
vers have  b^en  examined  on  both  sides,  to  whose  testimony  I  pay  very 
little  attention,  as  their  opinions  are  very  little  to  be  depended  upon.  In 
this  as  in  all  other  cases  they  take  different  sides.  It  seems  to  be  a  part 
of  their  profession  to  take  different  sides."  (Turnbull  v.  Dods,  G  Dun- 
lop,  901.) 

Michigan  Supreme  Court.—  "  Every  one  knows  how  very  unsafe  it  is  to- 
rely  upon  any  one's  opinions  concerning  the  niceties  of  penmanship. 
The  introduction  of  professional  experts  has  only  added  to  the  mischief, 
instead  of  palliating  it,  and  the  results  of  litigation  have  shown  that 
these  are  often  the  merest  pretenders  to  knowledge,  whose  notions  are 
pure  speculation.  Opinions  are  necessarily  received,  and  may  be  valu- 
able, but  at  best  this  kind  of  testimony  is  a  necessary  evil.  Those  who 
have  had  personal  acquaintance  with  the  handwriting  of  a  person,  are 
not  always  reliable  in  their  views,  and  single  signatures,  apart  from  some 
known  surroundings,  are  not  always  recognized  by  the  one  who  made 
them.  Every  degree  of  removal  beyond  personal  knowledge,  into  the 
domain  of  what  is  sometimes  called,  with  great  liberality,  scientific 
opinion,  is  a  step  toward  greater  uncertainty,  and  the  science  which  is 
so  generally  diffused  is  of  very  moderate  value."  (Foster's  Will,  34 
Mich.  21,  25.) 

Supreme  Court  of  District  of  Columbia. — u  The  signatures  of  these 
papers  are  claimed  not  to  be  genuine,  and  here  we  are  treated  to  the 
opinion  of  half  a  dozen  men  who  claim  to  be  experts,  ami  who  come  up- 
and  give  us  their  views  as  to  the  genuineness  of  these  signatures.  Of 
all  kinds  of  evidence  admitted  in  a  court,  this  is  the  most  unsatisfactory. 
It  is  so  weak  and  decrepit  as  scarcely  to  deserve  a  place  in  our  system  of 
jurisprudence."  And,  notwithstanding  the  evidence  of  the  experts,  the 
court  declared  that  it  was  satisfied  as  to  the  genuineness  of  the  signa- 
tures. (Cowan  v.  Beall,  1  McArthur,  270,  274.) 

Supreme  Court  of  Vermont, —  "  It  would  be  trite  to  repeat  the  very  uni- 
form expression  of  judges  and  the  books  as  to  the  small  value  of  this 
kind  of  evidence,  yet  it  is  warrantable  to  say  that  such  expression  i& 


268  EXPERT  TESTIMONY. 

•corroborated  by  our  own  observation  and  experience  in  judicial  admin- 
istration." (Wright  v.  Williams'  Estate,  47  Vt.  222,  234.)  In  an  earlier 
case  the  same  court  had  declared  such  evidence  to  be  of  "but  little  weight, 
AS  proof  of  the  disputed  fact."  (Pratt  v.  Rawson,  40  Vt.  183,  188.) 

United  States  Circuit  Court.— "  Whether  the  signatures  appear  to  be 
done  by  the  same  hand,  that,  I  think,  is  a  question  you  can  put  to  an 
expert.  Though  the  testimony  is  of  rather  a  dangerous  character,  and 
not  much  to  be  relied  on."  (Grier,  J.,  in  U.  S.  v.  Darnaud,  3  Wall.  Jr. 
143, 183.)  And,  "  Opinions  with  regard  to  handwriting  are  the  weakest 
and  least  reliable  of  all  evidence  as  against  direct  proof  of  the  execution 
of  an  instrument."  (Grier,  J.,  in  Turner  v.  Hand,  3  Wallace  Jr.,  88, 
115.) 

Supreme  Court  of  Indiana. —  "Experience  shows  that  the  opinions  of 
persons  of  skill,  are  often  more  reliable  than  the  judgment  of  those  who 
speak  from  knowledge  of  having  seen  the  party  write.''  (Chance  v.  In- 
dianapolis, etc.  R.  R.  Co.,  32  Ind.  472,  474.) 

New  Jersey  Court  of  Chancery.—  All  doubt  respecting  the  competency 
of  the  opinion  of  experts  in  handwriting,  based  upon  mere  comparison, 
as  evidence,  have  been  removed  by  statute;  but  it  still  must  be  esteemed 
proof  of  low  degree.  Very  learned  judges  have  characterized  it  as 
much  too  uncertain,  even  when  only  slightly  opposed,  to  be  the  founda- 
tion of  a  judicial  decision."  (Mutual  Benefit  Life  Ins.  Co.  v.  Brown, 
30  N.  J.  Eq.  193,  201.) 

Supreme  Court  of  Mississippi. —  Declares  that  the  evidence  of  experts 
in  handwriting  "ought  to  be  received  and  weighed  cautiously  by  the 
jury,"  but  adds:  "An  eye  practiced  in  judging  writings,  may,  at  a 
glance,  detect  irregularities  or  counterfeits  about  it,  which  would  en- 
tirely escape  notice  or  detection  from  an  unpracticed  eye.  *  *  To 
shut  out  the  evidence  which  might  be  afforded  by  skilful  persons  in  the 
art  of  writing,  would  be  almost  equivalent  to  saying  that  the  law  had 
provided  no  means  by  which  well  executed  forgeries  could  be  detected, 
and  they  must,  therefore,  be  respected  as  genuine."  (Moye  v.  Herndon, 
30  Miss.  118.) 

Supreme  Court  of  Iowa. —  The  opinion  of  this  court  on  the  value  of 
expert  testimony  in  handwriting,  may  be  found  on  page  63  of  this  work. 

"C."— THE   TESTIMONY  OF   MEDICAL  EXPERTS. 

The  Supreme  Courts  of  North  Carolina,  of  Texas  and  of  Pennsylvania. — 
The  Supreme  Court  of  North  Carolina  says :  "  The  opinion  of  a  well 
instructed  and  experienced  medical  man  upon  a  matter  within  tho  scope 
of  his  profession,  and  based  on  personal  observation  and  knowledge,  is 
and  ought  to  be  carefully  considered  and  weighed  by  the  jury  in  render- 
ing their  verdict."  (Flynt  v.  Bodenhamer,  80  N.  C.  205.) 

The  Supreme  Court  of  Texas,  in  a  case  involving  a  person's  sanity, 
declares :  "  The  opinions  of  medical  men  are  received  with  great  respect 
and  consideration,  and  properly  so."  (Thomas  v.  State,  40  Texas,  65.) 

To  the  same  effect  is  the  language  of  the  Supreme  Court  of  Pennsyl- 
vania: "It  is  well  settled,"  says  that  court,  "  that  the  knowledge  and 


APPENDIX.  269 

experience  of  medical  experts  is  of  great  value  in  questions  of  insanity." 
(Pannell  v.  Commonwealth,  86  Penn.  St.  260.) 

The  Court  of  Appeals  of  West  Virginia.—  In  a  case  which  involved  the 
mental  capacity  of  a  grantor  to  make  a  valid  deed,  said :  "  The  evidence 
of  physicians,  especially  those  who  attended  the  grantor,  and  were  with 
him  considerably  during  the  time  it  is  charged  he  was  of  unsound  mind, 
is  entitled  to  great  weight."  (Jarrett  v.  Jarrett,  11  W.  Va.  627.) 

St.  Louis  Court  of  Appeals.—  In  Slais  v.  Slais,  9  Mo.  App.  96,  it  is  said 
that  the  testimony  of  a  physician  as  to  the  insanity  of  a  person  he  did 
not  know  at  the  time,  is  entitled  to  but  little  weight. 

TTie  Supreme  Court  of  Mississippi,  says :  "•  Prominent  among  the  testi- 
mony made  use  of  at  this  stage  of  investigation  (a  dead  body  having 
been  found,  to  show  death  was  caused  by  criminal  act) ,  is  that  of  medical 
and  scientific  persons,  surgeons,  physicians  and  chemists,  by  whom  the 
body  or  its  remains  have  been  inspected  or  examined  either  at  the  time 
of  their  discovery  or  shortly  after.  The  testimony  of  these  witnesses,  as 
to  the  appearances  observed  on  such  examinations  is  always  of  the 
greatest  value,  and  their  opinions  as  to  the  causes  of  such  appearances 
are  entitled  to  much  consideration."  (Pitts  v.  State,  43  Miss.  472,  480.)' 

The  Supreme  Court  of  Georgia,  speaking  of  the  value  of  expert  testi- 
mony in  cases  of  insanity,  says :  "  As  it  respects  this  species  of  testimony 
generally,  the  doctrine  is  this :  It  is  competent  testimony,  and  where 
the  experience,  honesty,  and  impartiality  of  the  witnesses  are  undeni- 
able, as  in  this  case,  the  testimony  is  entitled  to  great  weight  and  con- 
sideration. Xot  that  it  is  so  authoritative,  that  the  jury  are  bound  to 
be  governed  by  it  —  it  is  intended  to  aid  and  assist  the  jury  i»  coming  to- 
correct  conclusions."  (Choice  v.  State.  31  Ga.  424, 481.) 

In  the  same  case,  Mr.  Justice  Lumpkin,  speaking  for  himself,  says : 

•'As  for  myself,  I  would  rely  as  implicitly  upon  the  opinion  of  practi- 
cal men,  who  form  their  belief  from  their  observation  of  the  appearance, 
conduct  and  conversation  of  a  person,  as  I  would  upon  the  opinions  of 
physicians,  who  testify  from  facts  proven  by  others,  or  the  opinions  even, 
of  the  keepers  of  insane  hospitals."  (p.  466.) 

The  Supreme  Court  of  Ohio,  in  a  criminal  case  involving  the  sanity  of  a 
person  on  trial  for  murder,  said :  "  It  would  be  but  a  farce  to  try  such  a 
question  upon  the  strength  of  medical  opinions,  and  to  regard  the  weight 
of  evidence  always  on  the  side  which  produced  the  greatest  numbers^ 
Sir  John  Xicholl,  in  Evans  v.  Knight,!  Add.  239,  observes  that  'experi- 
ence in  the  ecclesiastical  courts  taught  him  that  evidence  on  questions 
of  capacity,  being  commonly  that  of  opinion  merely,  was  almost  always 
contradictory.'  *  *  *  The  difficulties  witnessed  by  Sir  J.  Xicholl,. 
almost  always  occur  when  the  opinions  of  physicians  are  required  in 
cases  of  medical  jurisprudence.  Whenever  they  have  enlisted  on  the 
side  of  either  party,  or  of  some  favorite  theory,  and  one  portion  of  the 
profession  is  placed  in  array  against  another,  the  difficulties  mentioned 
in  the  passage  above  quoted,  are  greatly  multiplied,  and,  however  honest 
or  renowned  for  professional  character  the  witnesses  may  be,  such  will  be 
the  conflict  of  their  testimony,  in  nine  cases  out  of  ten,  that  it  will  be 
utterly  unsafe  for  a  jury  or  court  to  follow,  or  adopt,  the  conclusions  oi 


270  EXPERT  TESTIMONY. 

-either  side.  *  *  *  Medical  testimony  is  of  too  much  importance  to 
be  disregarded.  *  *  *  When  delivered  with  caution,  and  without 
bias  in  favor  of  either  party,  or  in  aid  of  some  speculation  and  favorite 
theory,  it  becomes  a  salutary  means  of  preventing  even  intelligent  juries 
from  following  a  popular  prejudice,  and  deciding  a  cause  on  inconsistent 
and  unsound  principles.  But  it  should  be  given  with  great  care  and 
received  with  the  utmost  caution,  and,  like  the  opinions  of  neighbors  and 
acquaintances,  should  be  regarded  as  of  little  weight,  if  not  well  sus- 
tained by  reasons  and  facts  that  admit  of  no  misconstructions,  and  sup- 
ported by  authority  of  acknowledged  credit.1'  (Clark  v.  State,  12  Ohio, 
483.) 

The  Supreme  Court  of  Illinois. —  In  1875,  the  Supreme  Court  of  Illinois 
said :  "These  doctors  were  summoned  by  the  contestants  as  '  experts,' 
for  the  purpose  of  invalidating  a  will  deliberately  made  by  a  man  quite 
as  competent  as  either  of  them  to  do  such  an  act;  they  were  the  contest- 
ants' witnesses  and  so  considered  themselves,  Dr.  Bassett  especially, 
whose  sole  testimony  is  pregnant  with  such  indications.  The  testimony 
of  such  is  worth  but  little,  and  should  always  be  received  by  juries  and 
courts  with  great  caution.  It  was  said  by  a  distinguished  judge,  in  a  case 
before  him,  If  there  was  any  kind  of  testimony  not  only  of  no  value,  but 
even  worse  than  that,  it  was,  in  his  judgment,  that  of  medical  experts. 
They  may  be  able  to  state  the  diagnosis  of  the  disease  more  learnedly, 
but,  upon  the  question,  whether.it  had,  at  a  given  time,  reached  such  a 
stage  that  the  subject  of  it  was  incapable  of  making  a  contract,  or  irre- 
sponsible for  his  acts,  the  opinions  of  his  neighbors,  if  men  of  good  com- 
mon sense,  would  be  worth  more  than  that  of  all  the  experts  in  the  coun- 
trv.  *  *  *  It  must  be  apparent  to  every  one,  but  few  wills  could 
stand  the  test  of  the  fanciful  theories  of  dogmatic  witnesses,  who  bring 
discredit  on  science,  and  make  the  name  of  '  expert '  a  by-word  and  a 
reproach.  We  concur  with  the  judge  above  referred  to;  we  would  not 
give  the  testimony  of  these  common  sense  witnesses,  deposing  to  what 
they  know  and  saw  almost  every  day  for  years,  for  that  of  so-called 
experts,  who  always  have  some  favorite  theory  to  support — men  often  as 
presumptuous  as  they  are  ignorant  of  the  principles  of  medical  science.," 
(Rutherford  v.  Morris,  77  111.  397,  404.) 

And  the  same  court  in  a  subsequent  case  of  Carpenter  v.  Calvert,  S3  111. 
62,  70,  expressed  itself  in  somewhat  similar  language. 

The  Scotch  Courts. —  The  London  Lancet,  said  to  be  the  most  eminent 
medical  journal  in  the  world,  says  in  a  .recent  issue:  "Several  cases 
which  have  recently  been  considered  in  the  higher  courts  of  Scotland 
have  brought  into  unfortunate  prominence  the  diversity  of  opinion 
regarding  the  cases  in  dispute  so  frequently  manifested,  even  by  the 
most  distinguished  members  of  our  profession.  A  few  months  ago,  in  a 
murder  trial  at  Aberdeen,  the  most  contradictory  opinions  regarding  the 
mental  condition  of  the  culprit  were  expressed,  and  Lord  Deas  signified 
his  unwillingness  to  have  his  mental  condition  investigated  by  one  of 
these  medical  men,  evidently  fearing  that  he  himself  might  be  incarcer- 
ated." And  it  quotes  Lord  Frazer  as  saying  in  another  case  that :  "  The 
evidence  was  a?  unsatisfactory  as  any  he  had  seen.  It  left  on  the  mind 


APPENDIX.  271 

the  distressing  impression,  that  the  science  of  medicine  was  simply  the 
science  of  guessing  and  experts.  Different  doctors  with  equal  confi- 
dence and  equal  dogmatism,  expressed  contrary  opinions  upon  the  same 
condition  of  things.  He  advised  the  jury  to  exercise  their  common 
sense,  throw  overboard  the  medical  opinions,  and  go  by  the  facts."  (See 
15  Central  Law  J.  Gl,  July  28th.  1882.) 

'•I)."— ADDITIONAL    CASES. 

§  8.  Upon  a  trial  for  murder  an  expert  testified  that  certain  hair 
which  was  found  on  a  wheelbarrow  and  that  taken  from  the  skull  of  the 
deceased,  was  from  the  head  of  the  same  person.  His  conclusion  was 
reached  not  from  any  scientific  tests,  but  from  the  length,  magnitude 
and  color.  It  was  held  that  the  comparison  made  required  no  peculiar 
skill  nor  scientific  knowledge,  "it  was  no  more  in  the  province  of  an 
expert  than  of  an  ordinary  person  to  make  it.  It  related  to  a  matter  of 
common  observation,"  and  the  opinion  was  inadmissible.  (Sup.  Ct.  of 
Wisconsin,  June,  1882,  Knoll  v.  State,  14  The  Reporter,  381.) 

§  75.  In  an  action  to  recover  for  personal  injuries  caused  by  the 
negligence  of  the  defendant,  the  court  has  power  to  require  the  plaintiff 
to  submit  his  person  to  an  examination  by  physicians  and  surgeons.  On 
his  refusal  to  comply  with  the  order,  the  court  may  dismiss;  the  action, 
or  refuse  to  allow  him  to  give  evidence  to  establish  the  injury.  The  ap- 
plication for  an  order  to  submit  to  such  an  examination  ought  to  be  so 
made  as  not  unnecessarily  to  prolong  the  trial,  or  to  prejudice  the  plain- 
tiff in  proving  his  case.  When  the  application  is  not  made  until  after 
the  close  of  the  plaintiff's  evidence  in  chief,  and  the  commencement  of 
the  introduetion.of  the  defendant's  evidence,  and  no  reason  is  shown  for 
the  delay  in  the  application,  it  may  be  refused  on  that  ground. 
And  it  is  not  error  to  refuse  to  charge  the  jury  that  the  refusal  of  the 
plaintiff  "  at  any  time  after  the  close  of  the  testimony  on  his  behalf '"  to  sub- 
mit to  an  examination,  affords  a  presumption  against  him.  The  refusal 
of  the  trial  court  to  order  an  examination  will  not  be  presumed  to  have 
been  made  on  the  ground  of  a  want  of  power  to  make  the  order,  but  in 
the  absence  of  a  showing  to  the  -contrary,  on  the  ground  that,  under  the 
circumstances,  the  order  ought  not  to  have  been  granted.  (Turnpike 
Co.  v.  Baily,  37  Ohio  St.  104.) 

§31.  A  question  calling  for  the  opinion  of  a  physician  as  to  whether 
certain  specified  symptoms  in  connection  with  other  testimony  (not  speci- 
fied), indicated  unsound  mind,  is  held  improper  as  referring  to  other 
testimony  without  specifying  what  the  other  testimony  was.  (Storer's 
Will,  28  Minn.  9.) 

§  48.  The  opinion  of  an  expert  physician  derived  from  statements  of 
the  patient  of  present  feelings  and  pains,  and  of  present  bodily  condition 
is  held  admissible,  and  he  may  give  in  evidence  such  statements.  But 
his  opinion  based  upon  the  patient's  past  experience  er  history  of  the  case 
is  inadmissible,  and  he  cannot  give  such  past  statements  in  evidence. 
(Railroad  Company  v.  Frazier.  tl  Kans.  463.) 


272  EXPERT  TESTIMONY. 

§  127.  The  opinions  of  witnesses  who  kad  been  in  the  ice  business  for 
several  years,  were  held  admissible  to  show  what  per  cent,  of  waste  from 
melting,  etc.,  there  would  be,  the  ice  being  properly  handled  and  man- 
aged. (Sexton  v.  Lamb,  27  Kans.  426.) 

§  38.  The  jury  are  to  exercise  an  independent  judgment,  and  give  such 
weight  to  the  expert  testimony  as  they  deem  it  worth.  And  in  an  action 
for  legal  services,  the  opinions  of  attorneys  as  to  their  value  is  not  to 
preclude  the  jury  from  exercising  their  own  ideas  and  knowledge  upon 
the  subject.  (Knapp  v.  Monell,  (N.  Y.  Sup.  Ct.),  15  Cent.  Law  J.,  281;. 

§  155.  A  dealer  in  clocks  may  testify  as  to  the  value  of  a  clock  which 
he  has  not  seen,  but  has  heard  described.  The  fact  that  he  has  not  seen 
the  clock  does  not  go  to  his  competency,  but  only  to  the  weight  to  be 
attached  to  his  testimony.  (Whiton  v.  Snyder,  88  N.  Y.  299,  308). 


INDEX- 

figures  refer  to  the  pages. 


ABORTION. 

opinions  of  medical  experts  as  to,  95. 
ABSTRACT  QUESTIONS  OP  SCIENCE. 

when  opinions  as  to  are  inadmissible,  19. 
ACCIDENT. 

whether  anything  could  have  been  done  to  prevent,  48.  142, 14C. 
opinion  as  to  severity  of  injury  by  a  railroad,  71,  n.  2. 
whether  wound  was  inflicted  by,  84. 
ACCOUNTANT. 

computations  made  by,  172. 
opinion  as  to  compensation  for  services  of,  22G. 
opinion  of  as  to  average  duration  of  life,  231. 
ACTUARIES. 

opinion  of  as  to  value  of  an  annuity,  230. 
ADMLSSIBILITY  OF  EXPERT  TESTIMONY.      See    INAUMISSIBIL- 

ITY  OF  OPINIONS. 

the  practice  of  admitting  expert  testimony  an  ancient  one,  3. 
\\hen  such  testimony  is  admissible,  8,  12. 

inadmissible,  12-21. 

when  admissible  on  questions  of  medical  science,  68, 117. 
of  legal  science,  118,  140. 
relating  to  the  trades  and  arts,  141. 
relating  to  handwriting,  176. 

to  the  value  of  property,  208. 
ADULTERATION  OF  MILK. 

opinion  as  to,  154. 
AGE. 

opinion  as  to  by  non-professional  witnesses.  6. 
opinion  as  to  by  professional  witnesses,  155. 

udmissibility  of  stand.ird  tables  ol  mortality  to  show  expectation  of 
life  at  a  particular  age,  231. 

(18) 


274  INDEX. 

ALABAMA. 

statutory  provision  as  to  verification  of  written  law,  129. 
ALMANACS. 

admissibility  of,  in  evidence,  236. 
ANIMALS. 

who  are  qualified  to  testify  as  to  diseases  in.  116. 
ANNUITIES. 

testimony  as  to  the  value  of,  230. 
AECHITECT. 

opinion  as  to  the  employment  of,  162. 
work  done  on  a  buildiBg,  173. 
value  of  houses,  220,  221. 
ARGUMENT. 

reading  from  scientific  books  in,  248,  251. 
ARKANSAS. 

statutory  provision  as  to  verification  of  written  law.  129. 
ART. 

•  definition  of  the  term,  12. 
ART  AND  SKILL. 

opinions  of  experts  received  on  questions  of,  12. 
ARTIST. 

opinion  of  as  to  genuineness  of  painting,  163. 

as  to  the  value  of  a  portrait,  218. 
ASSUMING  THE  EXISTENCE  OF  FACTS. 

right  of  counsel  as  to,  in  framing  the  hypothetical  question,  39. 

when  the  opinion  of  the  expert  must  be  asked  on  assumed  stute  of 
facts,  39. 

when  it  need  not  be,  43. 

doctrine  as  to,  on  the  cross-examination,  46. 
ATTORNEY.    See  LAWYERS. 
AUTHOR. 

opinion  as  to  the  value  of  a  literary  production,  218. 


13. 


BANKERS. 

opinion  of  as  to  genuineness  of  bank  notes,  205. 
an  inadmissible  opinion  of,  15. 
testimony  of  as  to  usage,  170. 

BANK  NOTES. 

detection  of  counterfeits,  205. 

statutory  provisions  as  to  proof  of  genuineness,  206. 
BANK  NOTE  DETECTORS. 

such  books  are  inadmissible  in  evidence.  205. 


INDEX.  275 

BLOOD  STAINS. 

expert  testimony  as  to,  111-113. 

testimony  of  non-professional  witnesses  as  to,  113. 

proper  questions  to  experts  concerning,  114. 
BOOKS  OF  SCIENCE. 

their  relation  to  expert  testimonj-,  234. 

their  admissibility  in  evidence,  236. 

medical  treatises  inadmissible  as  evidence,  237. 

whether  a  witness  is  qualified  as  an  expert  by  a  st  udy  of,  28. 

the  admissibility  of  opinions  based  on,  29. 
BRAKE MAX. 

inadmissible  opinion  of,  as  to  switching  cars.  14. 

opinion  as  to  proper  place  of,  147. 
BRASS  FINISHERS.- 

opinion  of,  161. 
BRICK-MAKER. 

opinion  of  as  to  mode  of  burning  tiles,  173. 
BRICK  MASON". 

opinion  of,  1G2. 
BROKERS. 

an  inadmissible  opinion  of,  15. 

opinion  of,  as. to  course  of  business,  109. 

opinion  of,  as  to  counterfeit  bank  notes,  206. 

opinion  of,  as  to  the  value  of  stocks,  222,  230,  232. 
BUILDERS. 

opinions  of,  161,  1G2. 


CALIFORNIA. 

statutory  provision  as  to  comparison  of  handwriting,  191. 
CANAL  BOATMAN. 

opinion  of,  as  to  seamanlike  acts,  3S., 
CARLISLE  TABLES. 

admissibility  of  to  show  expectation  of  life,  231. 
CARPENTER.    See  MECHANICS. 

opinion  of,  220,  221 . 
CASHIER. 

opinions  of,  205. 
CATTLE.    See  GUAZIEH. 
CHEMISTS. 

detection  of  poisons  by,  108. 

chemical  analysis  of  poison,  whether  necessary,  109. 

examination  of  blood  and  blood  stains,  111. 

opinions  of  in  some  miscellaneous  cases,  115. 

opinion  as  to  the  nature  of  the  ink  used  in  writing,  186. 


276  INDEX. 

CIVIL  ENGINEER. 

opinion  of,  as  to  construction  of  embankments.  29, 158. 
construction  and  safety  of  bridge,  158. 
amount  of  ground  overflowed,  158. 
cause  of  choking  up  of  harbor,  150. 
what  certain  land  was  suited  for,  159. 
construction  of  highway,  159; 

CLEAEING  LAND. 

opinion  as  to  proper  time  for,  }7. 
COLORADO. 

statutory  provision  as  to  verification  of  written  law,  130. 
COMPARISON  OF  HANDWRITING.  See  HANDWRITING. 
COMPENSATION  OF  EXPERTS. 

husband  must  defray  in  examinations  for  structural  defect,  103. 

statutory  provisions  concerning,  252. 

the  effect  of  making  extra  compensation  to  experts,  253. 

experts  need  not  make  preliminary  examination  without  extra  com- 
pensation, 254. 

whether  special  compensation  must  be  made,  254. 

opinions  of  writers  on  medical  jurisprudence  on,  255. 

paid  out  of  the  public  treasury,  203. 
COMPETENCY  OF  EXPERTS. 

must  be  shown  before  they  can  testify,  22. 

is  a  question  addressed  to  the  court,  23. 

when  decision  of  trial  court  on,  is  deemed  conclusive,  24,  25. 

rule  by  which  the  question  of,  is  determined,  24. 

preliminary  examination,  to  determine,  25. 

whether  the  witness  must  be  actually  engaged  in  the  trade  or  art  at 
the  time  of  testifying,  26. 

whether  he  must  possess  the  highest  degree  of  skill,  27. 

mere  opportunities  for  observation  not  sufficient,  27. 

when  their  knowledge  is  derived  from  the  study  of  standard  author- 
ities only,  28  -33. 

question  of,  is  sometimes  dependent  on  whether  expert  has  heard 
the  testimony,  33. 

when  testifying  as  physicians,  68. 

statutory  provision  in  Wisconsin,  as  to,  69,  71. 

statutory  provisions  in  other  States,  72. 

who  are  competent  to  testify  to  the  nature  and  prevalence  of  a  dis- 
ease, SO. 

when  testifying  as  to  character  of  instrument  producing  a  wound, 
84. 

when  testifying  to  mental  condition,  85. 

when  testifying  concerning  poisons,  108. 

when  testifying  concerning  blood  and  blood-stains,  111,  113. 

when  testifying  concerning  disease  in  animals,  116. 

when  testifying  as  to  foreign  law,  132-137. 

\\hen  testifying  as  nautical  experts,  141-145. 


IXDEX.  277 

COMPETENCY  OF  EXPERTS— Continued. 

railroad  experts,  145-148. 

experts  in  insurance.  148-152. 

gardeners,  farmers  and  stock  raisers,  153. 

millers  and  millwrights,  155, 156. 

surveyors  and  civil  engineers,  157-159. 

machinists,  160. 

mechanics,  masons  and  master  builders,  161. 

painters  and  photographers,  163. 

lumbermen,  164. 

to  technical  terms  and  usage,  165,  170. 

in  miscellaneous  cases,  170-175. 

to  handwriting,  178-182. 

to  the  nature  and  character  of  ink,  186. 

to  value,  214-222. 

to  the  value  of  legal  services,  222. 

to  the  value  of  medical  services,  224. 

10  the  value  of  other  services,  226. 

to  the  value  of  real  estate,  227. 

to  the  value  of  annuities,  230. 
CONCLUSIONS  OF  FACT. 

are  to  be  drawn  by  the  jury,  5. 
expert  cannot  draw  from  the  evidence.  37. 
CONCLUSIONS  OF  EXPERTS. 

jury  not  bound  to  accept,  59  et  seq. 

CONDUCTOR  (RAILROAD.) 

an  inadmissible  opinion  of,  14,  147. 

an  admissible  opinion  of,  146. 
CONFIDENTIAL  COMMUNICATIONS. 

opinions  based  on,  when  made  in  professional  confidence,  71. 

statutory  provisions  on  this  subject  considered,  72-74. 
CONNECTICUT. 

verification  of  written  law,  statutory  provision,  130. 
CONSTRUCTION. 

given  to  a  foreign  statute  by  a  foreign  tribunal,  124. 

to  be  given  to  a  survey,  surveyor  cannot  express  an  opinion  on,  157. 

of  machinery,  opinion  as  to,  160. 

of  writings,  expert  cannot  express  an  opinion  on,  165. 
COPYRIGHT. 

opinions  of  experts,  in  questions  of,  162. 
COUNTERFEITS. 

opinions  of  experts  in  the  detection  of,  205. 
COURT. 

must  determine  competency  of  witnesses,  23. 

discretion  of,  in  passing  on  questions  of  competency,  £3? 

right  of,  to  examine  witnesses,  25. 

light  to  exclude  experts  from  court  room,  53. 


278  INDEX. 

COURT— Continued. 

right  of,  to  limit  number  of  witnesses,  54. 

selection  of  experts  by,  56. 

instructions  of,  as  to  weight  of  testimony,  Gl-65. 

right  of,  to  order  an  examination  of  the  person,  99-103. 

takes  judicial  notice  of  what,  119-122. 

construction  of  writings,  a  question  for,  1G5. 
CREDIBILITY  OF  EXPERTS. 

is  a  question  for  the  jury,  58. 

what  it  depends  upon,  59. 

right  of  jury  to  exercise  an  independent  judgment  on.  GO. 

instructions  as  to  61-65. 
CROSS-EXAMINATION . 

what  is  a  proper,  46. 

refusal  to  allow  on  preliminary  examination  no  error,  50. 

right  to  reasons  of  expert  on,  50,  51. 

general  rules  as  to,  52,  53. 

what  is  improper  in  the  investigation  of  handwriting,  204. 

what  is  proper,  on  value  of  real  estate,  220. 
legal  services,  223. 

testing  knowledge  of  experts  on,  by  scientific  books,  245. 
CURRENCY. 

value  of,  232. 
CUSTOM  AND  USAGE. 

opinions  as  to,  168. 


1). 


DAMAGES. 

the  opinions  Of  witnesses  as  to  amount  of,  211. 

compulsory  examination  of  the  person,  in  actions  for,  106. 
DEATH. 

opinions  of  experts  as  to  cause  of,  21,  77,  98,  81. 

opinion  of  non-professional  witness  that  a  person  was  going  to  die, 

inadmissible,  SO. 
DEFINITIONS. 

of  the  term  "expert."  1-3. 

of  the  terms  "  science  "  and  "  art,"  12. 

of  the  meaning  of  words  is  given  by  the  court  to  the  jury,  163. 
DELAWARE. 

statutory  provision  as  to  proof  of  foreign  law,  125. 

verification  of  the  written  law,  129. 
DETECTIVES. 

opinion  of,  15. 
DIMENSION. 

opinion  as  to,  5. 


INDEX.  279 

DISCRETION  OF  COURT. 

much  is  left  to,  in  passing  on  competency  of  experts,  23. 
DISEASE. 

opinions  of  experts  as  to  nature  and  symptoms  of,  79. 
non -professional  witnesses,  as  to,  SO. 
as  to,  in  animals,  11G. 
DISTANCE. 

opinions  as  to,  5. 
DIVORCE. 

for  impotency,  examination  of  the  person  by  experts  in  cases  of,  99, 

103. 
DOWER. 

admissibility  of  tables  for  computing  potential  right  of,  231. 
DURATION  OF  TIME. 

opinion  as  to,  5. 

E. 

ENGINEER.    See  CIVIL  ENGINEER  AND  SURVEYOR. 

an  inadmissible  opinion,  38. 

railroad,  opinions  of,  146, 148. 
ENGRAVER. 

opinions  of,  in  handwriting,  178, 183, 184. 
ETHICS. 

opinions  founded  on  a  theory  of,  are  inadmissible,  18.' 
ETHNOLOGIST. 

opinion  of,  as  to  race,  170. 
EVIDENCE.    See  TESTIMONY. 

expert  cannot  draw  conclusions  from,  nor  pass  on  the  weight  of  the, 
37  et  seq. 

of  collateral  facts  admissible  when,  52. 

EXAMINATION  OF  EXPERT  WITNESSES.    See  CROSS-EXAMINA- 
TION. 

preliminary  to  their  testifying  as  experts,  25. 

mode  of  their  examination,  36. 

by  the  hypothetical  question,  39-43. 

when  it  need  not  be  by  a  hypothetical  question,  43-46. 

not  to  be  asked  questions  of  law,  47. 

as  to  particular  cases,  47. 

on  facts  not  stated  by  them,  48. 

latitude  of  inquiry  in,  49. 

as  to  the  reasons  for  their  opinions,  51. 

general  rules  as  to  examination  of  witnesses,  51-53. 

excluding  witnesses  from  court  room,  during,  53. 

as  to  sanity,  87. 

as  to  blood  stains,  114. 

whether  it  should  be  conducted  by  the  court,  58. 


280  INDEX. 

EXAMINATION  OF  THE  PERSON. 

right  of  court  to  order  a  compulsory  one,  in  case  of  impotency,  99. 

in  criminal  cases,  104. 

in  actions  for  damages,  106. 
EX  PARTE  INVESTIGATIONS. 

opinions  based  on,  20. 
EXPERIENCE. 

degree  of,  required  in  experts,  27. 

EXPERTS.  See  ADMISSIBILITY  OF  EXPERT  TESTIMONY,  COMPENSA- 
TION OF  EXPERTS,  COMPETENCY  OF  EXPERTS,  CREDIBILITY  OF 
EXPERTS,  CROSS-EXAMINATION,  DEFINITIONS,  EXAMINATION 
OF. 

who  canaot  be  considered  as  such,  3. 

opinions  as  to  reputation  and  skill  of,  49,  50. 
EYE. 

expert  testimony  as  to,  71,  99,  116. 


F. 

FARMERS. 

opinion  of,  as  to  spreading  of  fire  in  clearing  land,  17,  154. 
condition  of  land  for  cropping,  153. 
safety  of  wagon  loaded  with  hay,  153. 
yield  of  land  to  the  acre,  153. 
adulteration  of  milk,  154. 
sufficiency  of  fence,  175. 
value  of  cattle,  220. 
value  of  real  estate,  229. 
FARRIER. 

opinion  of,  116. 
FEDERAL  CONSTITUTION. 

State  courts  take  judicial  notice  of,  120. 
FEDERAL  COURTS. 

State  statutes  as  to  comparison  of  handwriting  of  no  effect  in,  193. 
take  judicial  notice  of  State  statutes,  120. 
FEDEKAL  STATUTES. 

State  courts  judicially  notice,  120. 
FENCE. 

opinion  as  to  sufficiency  of,  175. 
FIRE. 

opinion  as  to  proper  time  to  set,  17. 
FIRE  ARMS. 

opinion  as  to  wadding,  16. 

length  of  time  since  weapon  was  discharged,  173. 
opinion  as  to  which  barrels  had  been  discharged,  173. 
opinion  as  to  value  of,  222. 


INDEX.  281 

FISH. 

opinion  as  to  agility  of,  173 
FLORIDA. 

statutory  provision  as  to  verification  of  written  law,  129. 
FOREIGN  LAW.     See  LAW. 

as  a  subject  for  the  testimony  of  experts,  121. 

mode  of  proof,  by  experts  in,  123. 

presumed  to  be  unwritten,  124. 

statutory  provisions  as  to  verification  of,  129. 

certification  of  questions  of,  to  courts  of  foreign  country.  l;!G. 

qualifications  of  experts  in,  132-138. 

right  of  expert  in,  to  cite  books,  138. 
FRANCE. 

how  experts  are  selected  in,  55. 

submission  to  experts  of  disputed  writings  for  comparison,  189. 

G. 

GARDENER. 

opinion  as  to  method  of  using  fertilizers,  153. 
condition  of  land  for  cropping,  153. 
damage  to  garden  by  smoke,  153. 
what  certain  land  was  suitable  for,  15G. 
GAS-FITTER. 

opinion  of,  167. 
GEOLOGIST. 

opinion  of,  as  to  existence  of  coal  seams,  170. 

settling  and  cracking  of  the  earth,  171. 
GEORGIA. 

statutory  provision  as  to  verification  of  written  law,  130. 

comparison  of  handwriting,  11)1. 
GERMANY. 

how  experts  are  selected  in,  56. 
GIN. 

opinion  as  to  whether  certain  liquor  was,  5. 
GOVERNMENTAL  EXPERTS. 

a  system  of,  considered,  56. 
GRAZIER. 

opinion  as  to  number  of  stock  running  in  a  range,  155, 

condition  of  cattle  and  causes  affecting  their  health,  1»V>. 
weight  of  cattle,  155. 
damage  to  cattle,  155. 
the  value  of  cattle.  220. 
GUN  AND  GUNSMITH.    See  FIRE-AUMS. 
GUN-SHOT  WOUNDS. 

who  may  testify  as  to,  83-S5. 

(10) 


282  INDEX. 


H. 

HAIR. 

opinion  as  to  whether  human  or  not,  6. 
HANDWRITING.    See  WRITINGS. 
the  scientific  investigation  of ,  177. 
who  are  experts  in,  178-182. 
what  they  may  testify  to,  1S2-1S4. 
testimony  as  to  nature  and  quality  of  inks,  185. 
who  are  qualified  to  testify  as  to  the  nature  of  ink,  18G-1S8. 
comparison  of  writings,  188. 

statutory  provision  as  to,  190. 

in  the  absence  of  statutory  provision,  192-19."). 

with  those  admitted  to  be  genuine,  li)5. 

with  photographic  copies,  199-202. 

with  writings  made  on  the  trial,  203. 

in  questions  of  orthography,  203. 
proof  of  genuineness  of  writing  compared,  197. 
expert  should  have  the  writing  before  him,  198. 
testing  accuracy  of  expert  in,  204. 
HIGHWAY. 

whether  experts  may  testify  as  to  sufficiency  of.  17. 
HORSES. 

opinion  as  to  health  and  disposition  of,  6. 

objects  calculated  to  frighten,  6, 172. 
HYPOTHETICAL  QUESTION. 

opinions  of  experts  should  be  asked  by  means  of,  3:3. 

wiien  the  question  need  not  be  hypothetical,  43-46. 

how  it  is  to  be  framed,  39-43. 

form  of,  on  cross-examination,  46. 

where  jury  may  disregard  opinion  based  on,  40. 

should  be  submitted  before  rebutting  evidence  is  heard.  4G. 

I. 

IDENTITY. 

opinions,  as  to,  5. 

evidence  of,  8. 
ILLINOIS. 

statutory  provision  as  to  verification  of  written  law.  129. 

statutory  provision  as  to  competency  of  experts  in  detection  of  coun- 
terfeits, 206. 
IMPOTENCY. 

right  to  order  an  examination  of  the  person  in  cases  of,  99. 

who  should  be  appointed  to  make  an  examination  in  cases  of,  100. 

when  an  examination  will  not  be  ordered  in  cases  of,  101. 

testimony  in  cases  of,  received  .with  caution,  103. 


INDEX.  283 

INADMISSIBILITY  OF  BOOKS  OF  SCIENCE, 
as  evidence,  234. 

INADMISSIBILITY  OF  OPINIONS.    See  AUMISSIBILITY  OF  EXPERT 

TESTIMONY. 

opinions  of  witnesses  in  general  inadmissible,  4. 
opinions  of  non-professional  witnesses  inadmissible  on  questions  of 

science,  art,  or  trade,  G. 

when  opinions  of  experts  are  inadmissible,  12. 
opinions  founded  on  a  theory  of  morals  or  ethics?,  18. 
opinions  based  on  speculative  data,  19. 

opinions  of  experts  who  have  made  ex  parte  investigations,  20. 
based  on  part  of  the  testimony,  43. 
based  on  facts  heard  outside,  48. 

INDIANA. 

statutory  provision  as  to  disclosure  of  professional  communications 

by  physicians,  72. 
statutory  provision  as  to  verification  of  written  law,  129. 

extra  compensation  of  experts,  253. 
INK. 

whether  two  documents  were  written  with  the  same,  183, 185. 
micro-chemical  examination  of,  185. 
qualifications  of  experts  in,  186. 

INSANITY. 

form  of  question  as  to,  38,  44,  87. 
opinions  of  medical  experts  on,  85. 
who  are  competent  to  testify  as  experts,  85-87. 
evidence  bearing  on  questions  of,  88-90. 
opinions  of  non-professional  witnesses,  90,  94. 

INSPECTION  OF  THE  PERSON.    See  EXAMINATION  OF  THE  PER- 
SON. 

INSTRUCTIONS. 

as  to  the  nature  and  weight  of  expert  testimony,  61-65. 
INSTRUMENT. 

by  which  wounds  were  inflicted,  opinion  as  to  character  of,  84,  85. 
INSURANCE  EXPERTS. 

whether  they  may  testify  as  to  the  materiality  of  concealed  facts,. 
148-150. 

who  are  competent  to  testify  to  such  materiality,  150. 

what  they  may  testify  to,  151-153. 
INTERROGATORIES. 

summoning  experts  to  determine  in  cases  of  impotency,  101. 
INTOXICATIOX. 

opinion  as  to  whether  a  person  is  under,  5. 

IOWA. 

statutory  provision  as  to  disclosure  by  physician  of  professional 
communications.  72. 


284  INDEX. 

IOWA— Continued. 

statutory  provision  as  to  comparison  of  handwriting  by  experts,  191. 
verification  of  written  law,  129. 
compensation  of  experts,  252. 

J. 

JETTISON. 

opinion  as  to  necessity  of,  144. 
JUDICIAL  NOTICE. 

is  taken  of  what  laws,  119. 
is  not  taken  of  what  laws,  121. 
of  the  meaning  of  words  and  idioms,  1G3. 
JURY. 

province  of  jnry  to  draw  inferences  from  the  facts,  5. 

is  not  selected  with  a  view  to  its  knowledge  of   science}  art,  or 

trade,  9. 

competency  of  experts  cannot  be  referred  to,  23. 
weight  of  expert  testimony  is  to  be  determined  by,  58. 
right  of,  to  exercise  an  independent  judgment  in  passing  on  the 

weight  of  expert  testimony,  59-61. 
instructions  to,   on  the  nature   and  weight  of  expert  testimony, 

Gl-65. 
reading  scientific  books  to,  as  evidence,  237. 

as  argument,  248. 
inspection  of  the  person  by,  104. 

K. 

KANSAS. 

statutory  provision  as  to  competency  of  experts  in  detection  of  coun- 
terfeits, 207. 
KENTUCKY. 

statutory  provision  as  to  verification  of  written  laws,  130. 
proof  of  foreign  law,  126. 

L. 

LAW.    See  FOREIGN  LAW;  JUDICIAL  NOTICE;  LAWYERS. 

as  a  subject  for  expert  testimony,  118. 

distinction  between  written  and  unwritten  as  so  mode  of  proof,  123. 
LAWYERS. 

as  experts  in  the  science  of  law,  119. 

whether  witnesses  must  be,  to  testify  to  foreign  law,  132-136. 

where  knowledge  of  the  law  must  have  been  acquired,  137. 

right  of  to  cite  text  books,  decisions  and  codes,  138. 

testimony  of ,  as  to  usage  and  practice  of  the  courts,  139, 
powers  and  obligations  of  an  attorney,  140. 
value  of  their  services,  222. 

whether  they  may  read  from  scientific  books  in  argument,  248. 


INDEX.  285 

LIQUOR. 

non-professional  witness  may  testify  as  to  character  of  certain,  5. 
LOUISIANA. 

statutory  provision  as  to  verification  of  written  law,  130. 
LUMBERMEN. 

opinion  as  to  amount,  of  logs  could  be  delivered  per  day,  161. 
proper  manner  of  floating  logs,  164. 
quality  of  lumber,  164. 
whether  a  raft  was  properly  moored,  104. 

M. 

MACHINERY. 

who  can  testify  as  to  construction  of  mill  machinery,  23. 
opinion  that  machine  was  constructed  in  workmanlike  m  inner.  44. 
•  opinion  as  to  the  merits  of,  160. 
need  not  be  a  machinest  to  testify  as  an  expert  in,  160. 
opinion  as  to  how  much  work  a  machine  could  do,  161. 
opinions  as  to  the  value  of,  218,  219. 
MAINE. 

statutory  provision  as  to  verification  of  written  law,  129. 
proof  of  foreign  law,  125. 

opinion  of  witnesses  in  the  detection  of  counterfeits,  207. 
MALPRACTICE. 

testimony  of  medical  experts  in  cases  of,  07. 
MARINE  SURVEYOR. 

opinion  as  to  seaworthiness,  142,  n.  2. 
MARYLAND. 

statutory  provision  as  to  verification  of  written  law,  129. 
MASONS  AND  MASTER  BUILDERS. 

opinions  of,  161,  162. 
MASSACHUSETTS. 

statutory  provision  as  to  verification  of  written  law,  129. 

proof  of  foreign  law,  125. 
MECHANICS. 

opinions  of.  161. 
MEDICAL  EXPERTS. 

who  are  qualified  to  testify  as  such,  68-71,  80,  86. 
opinion  as  to  physical  condition,  42,  77,  04. 
cause  of  death,  44,  45,  77,  OS,  100. 
nature  and  symptoms  of  disease,  79,  80. 
nature  and  effect  of  wounds,  81-85,  107. 
character  of  instrument  used  in  inflicting,  84-85. 
mental  condition,  85. 

whether  a  rape  has  been  committed,  and  effect  of,  94. 
whether  an  abortion  has  been  performed,  95. 
pregnancy,  95. 


286  INDEX. 

MEDICAL  EXPEETS— Continued. 

permanency  of  loss  of  vision,  96. 

questions  of  medical  practice,  96-98. 

condition  of  remains  after  burial,  96. 

premature  births,  97. 

sex  of  a  skeleton,  97. 

miscellaneous  cases,  96-97. 

curability  of  a  disease,  97. 

skill  of  physician  on  trial,  97. 

nature  and  properties  of  medicine,  98. 

impotency,  99-102. 

effect  of  poisons,  108. 

diseases  in  animals,  116-117. 
opinions  based  on  declarations  of  patients,  49,  75-77. 

statements  out  of  court,  74. 
disclosure  of  confidential  communications,  71. 
examination  of  the  person  by,  in  cases  of  impotency,  99. 

in  criminal  cases,  104-106. 

in  actions  for  damages,  106-108. 

testimony  of,  as  to  the  value  of  the   services  of  physicians   and 
nurses,  224. 

MEDICAL  TKEATISES. 

their  general  inadmissibility  in  evidence,  237-243. 

when  admissible  for  purpose  of  contradicting  a  medical  expert,  244. 

testing  knowledge  of  expert  by  means  of,  on  the  cross-examination, 

245. 

views  of  writers  on  medical  jurisprudence  as  to  their  exclusion,  246. 
reading  from,  in  arguing  to  the  jury,  248. 

MENTAL  CONDITION.    SEE  INSANITY. 

MICHIGAN. 

statutory  provision  as  to  disclosure  by  physicians  of  professional 

communications,  72. 
statutory  provision  as  to  verification  of  written  law.  129. 

MICROSCOPIST. 

opinion  of,  in  handwriting,  184. 

as  to  blood  stains,  111. 
MIDWIFE. 

inspection  of  the  person  by.  100. 

MILLERS  AND  MILLWRIGHTS. 

opinion  as  to  quantity  of  grain  a  mill  could  grind,  155. 
value  of  water  power  for  mill  purposes,  155. 
fitness  of  mill  site,  156. 
identity  of  wheat,  156. 
anchor  ice.  156. 

skilfulness  of  work  on  a  mill,  156. 
necessity  of  repairing  mill,  157. 
capacity  of  millwright,  157. 


INDEX.  287 

MILLERS  AND  MILLWRIGHTS— Continued, 
technical  terms,  168. 
value  of  a  mill,  217,  218. 
who  can  testify  as  to  construction  of  mill  machinery,  28. 

MINER. 

opinion  of,  170. 

MINNESOTA. 

statutory  provision  as  to  disclosure  by  physicians  of  professional 

communications,  72. 
statutory  provision  as  to  verification  of  written  laws,  129. 

MISSOURI. 

statutory  provision  as  to  disclosure  by  physicians  of  professional 

communications,  72. 
statutory  provision  as  to  verification  of  written  law,  130,  n.  2. 

MORALS. 

opinions  based  on  a  theory  of,  are  inadmissible,  18. 

MORTALITY  TABLES. 

their  admissibility  in  evidence,  231. 


NATIONALITY. 

opinion  as  to  a  persons,  6. 

NAUTICAL  EXPERTS. 

their  opinion  as  to  seaworthiness  of  vessels,  142, 145. 
cause  of  a  leak  in  a  ship,  142. 
the  soundness  of  a  chain  cable,  142. 
the  collision  of  vessels,  142, 143. 
the  management  of  ships,  142, 143. 
the  method  of  towing  boats,  142. 
effect  of  cross-seas,  142. 
cause  of  the  loss  of  a  vessel,  143. 
what  cargo  can  be  safely  carried.  143. 
negligence  in  mooring  vessel,  143. 
the  necessity  of  a  jettison,  144. 
what  would  be  the  expense  of  raising  and  repairing  a  vessel, 

144. 

sailing  rules  and  regulations,  144. 
safe  place  for  carrying  cargo,  144. 
competency  of  crew,  145. 
piloting  of  a  boat,  145. 

^NAVIGATION.    See  NAUTICAL  EXPERTS. 
.NEBRASKA. 

statutory  provision  as  to  disclosure  by  physicians  of  professional 

communications,  72. 
statutory  provision  as  to  comparison  of  handwriting,  191. 


288  INDEX. 

NEGOTIABLE  SECURITIES. 

value  of,  232. 

NEW  HAMPSHIRE. 

statutory  provision  as  to  opinion  evidence  on  the  value  of  property T 
209. 

NEW  JERSEY. 

statutory  provision  as  to  verification  of  written  law,  130. 
comparison  of  handwriting,  191. 

NEW  YORK. 

statutory  provision  as   to  disclosure  by  physicians  of  professiona 

communications,  72. 

statutory  provision  as  to  verification  of  written  law,  129. 
comparison  of  handwriting,  192. 

NON-PROFESSIONAL  WITNESSES. 

are  not  in  general  allowed  to  express  opinions,  4. 

when  they  may  express  opinions,  5. 

cannot  express  opinions  on  questions  of  science,  skill  or  trade,  7. 

cannot  testify  us  to  prevalence  of  disease  in  a  certain  locality,  80. 

may  testify  whether  a  person  appears  sick  or  well,  80. 

may  express  an  opinion  as  to  necessity  of  medical  services,  SO. 

cannot  testify  as  to  the  character  of  a  disease,  SO,  81. 

may  describe  the  appearance  of  a  wound,  82. 

may  testify  as  to  a  person's  mental  condition,  30-94. 

cannot  express  opinion  as  to  pregnancy,  95. 

whether  they  may  testify  as  to  blood  stains,  113. 

whether  they  may  testify  as  to  diseases  in  animals,  116. 

whether  they  may  testify  as  to  foreign  law,  132-136. 

cannot  express  an  opinion  based  on  a  comparison  of  handwriting, 

196. 

opinions  of,  in  questions  relating  to  value,  213. 
whether  they  may  testify  as  to  the  value  of  an  attorney's  services, 

223. 

whether  they  may  testify  to  the  value  of  medical  services,  224. 
their  opinions  of  the  value  of  real  estate,  227. 

NORTH  CAROLINA. 

statutory  provision  as  to  verification  of  written  law,  129. 
statutory  provision  as  to  additional  compensation  to  experts,  253. 

NORTHAMPTON  TABLES. 

admissibility  of,  to  show  expectation  of  life,  231. 

NURSE. 

who  may  testify  as  to  the  value  of  their  services,  225. 

opinion  of,  as  to  a  premature  birth,  96. 

opinion  of  physician  founded  on  declarations  of,  74. 

NURSERYMAN. 

opinion  of,  as  to  the  value  of  trees,  217. 


INDEX. 


O. 
OBJECTION. 

to  expert  testimony  may  be  general  when.  23. 
OCULIST. 

whether  a  physician  must  be,  to  testify  in  relation  to  the  eyes,  71. 
OHIO. 

statutory  provision  as  to  disclosure  by  physicians  of  profess! on :t> 

communications,  72. 

statutory  provision  as  to  verification  of  written  law,  129. 
OPINION.    See  ADMISSIBILITY  OF  EXPERT  TESTIMONY  — INADMISSI- 

BILITY  OF  OPINIONS  —  NON-PROFESSIONAL  WITNESSES. 
OREGON. 

statutory  provision  as  to  verification  of  written  law,  130. 

comparison  of  handwriting.  192. 
OVERSEER. 

opinion  of,  154. 

P. 
PAINTER.    See  ARTIST. 

opinion  of,  27. 
PAPER.    See  WRITINGS. 

how  made  to  appear  old,  187,  n. 

whether  it  had  been  used  as  gun  wadding,  16. 
PATENTS.  . 

opinions  of  experts  in,  162. 
PAVER. 

opinion  of,  170. 
PENNSYLVANIA. 

statutory  provision  as  to  admissibility  of  expert  testimony  in  detec- 
tion of  counterfeits.  207. 
PHOTOGRAPHS. 

comparison   of  handwriting  should  be  with  the  original  and  not  a 

photographic  copy,  199. 
when  a  comparison  of  writings  may  be  made  with  photographic: 

copy,  202. 

opinions  of  experts  as  to,  163. 

PHYSICIAN.     See  MEDICAL  EXPERTS  — PRIVILEGED  COMMUNICA- 
TIONS. 

is  an  expert  as  to  matters  relating  to  his  profession,  68. 
need  not  be  a  graduate  or  have  a  license,  to  testify  as  an  expert..  «»x» 
whether  he  must  be  engaged  in  practice,  69. 
need  not  be  a  specialist  to  testify  as  an  expert,  70. 
when  not  competent  to  testify  as  to  sanity,  70,  86. 
need  not  be  an  oculist  to  testify  as  to  the  eye,  71. 
whether  he  may  be  asked  for  his  impressions,  71. 
testimony  of,  on  question  of  mental  condition,  85. 
(20J 


2i)0  INDEX. 

PHYSICIAN.     See  MEDICAL  EXPERTS  —  PRIVILEGED  COMMUNICA- 
TIONS— Conti  n  ued . 
testimony  of,  in  poison  cases,  108. 
value  of  services  of.  how  shown,  224. 
medical  treatises  cannot  be  cited  in  general  to  sustain  or  contradict 

the  testimony  of,  237-247. 
cannot  be  compelled  to  make  a  post  mortem  examination  without 

special  compensation,  254. 

•extra  compensation  of,  when  testifying  as  an  expert,  256. 
opinion  inadmissible  as  to  whether  he  faithfully  discharged  his  duty 

to  his  professional  brethren,  19. 

PILOT. 

opinion  of,  145. 

POISONS. 

detection  of,  by  chemists,  108. 

a  chemist  need  not  be  a  physician  to  testify  as  to  the  effects  of,  108. 
n  physician  may  testify  as  to  symptoms  appearing  on  the  adminis- 
tration of,  109. 

when  a  chemical  analysis  of,  is  not  necessary,  109. 
order  of  research  in  analysis  for,  110. 

POST-MAEK. 

genuineness  of,  how  shown,  172. 

POST  MORTEM  EXAMINATIONS. 

what  is  sufficient  time  in  which  to  make,  19,  20.  / 

admissibility  of  testimony  of  physicians  makiag,  does  not  depend 

upon  their  thoroughness,  21,  81. 
interrogation  of  physicians  who  made,  96. 

.rules  prescribed  for  making  cannot  be  introduced  in  evidence,  239. 
value  of  services  in  making,  may  be  shown  by  whom,  225. 
•phj'sician  need  not  make  without  extra  compensation,  254. 

PREGNANCY. 

an  inadmissible  opinion  as  to,  20. 

the  testimony  of  medical  experts  on  the  question  of,  95. 

examination  of  the  person  with  a  speculum,  106. 

PRESUMPTIONS. 

persons  are  presumed  to  understand  questions  pertaining  to  their 

own  business  or  profession,  2. 
that  the  law  is  unwritten,  124. 
sthat  the  law  remains  unchanged,  132. 
.that  dealers  are  acquainted  with  value  of  articles  dealt  in,  221. 

PRIEST. 

a  Roman  Catholic,  as  an  expert  in  questions  of  sanity,  86. 
.an  expert  as  to  the  matrimonial  law,  133. 
.law  governing  church  records,  133. 


INDEX.  291 

PRIVILEGED  COMMUNICATIONS. 

communications  to  physicians  not  privileged  at  common  law,  71. 

statutory  provisions  as  to  disclosure  of  information  acquired  bv 
physicians  in  attending  patients,  71,  72. 

these  statutory  provisions  construed,  72-74. 
PROVINCE  OF  THE  JURY.    See  JURY. 
PROXIMATE  CAUSE. 

the  question  of,  is  not  one  of  science,  17. 

Q. 

QUALIFICATIONS  OF  EXPERTS.    See  CONPETENCY  OF  EXPERTS 

—  PHYSICIANS. 
QUALITY. 

who  are  qualified  to  testify  to  quality  of  railroad  ties,  147,  172. 
lumber,  164. 
iron, 170. 

expert  testimony  as  to  quality  of  steel  for  rails,  172. 
QUESTIONS  OF  FACT. 

whether  a  witness  possesses  the  requisite  qualifications  of  an  expert,. 

23-25. 
QUESTIONS  OF  LAW. 

whether  the  subject-matter  of  inquiry  is  such  that  expert  testimony 

may  be  received,  18,  25. 
what  are  the  qualifications  necessary  to  entitle  a  witness  to  testify 

as  an  expert,  18,  25. 

are  not  to  be  embraced  in  questions  to  experts,  47. 
construction  of  written  instruments  are,  158,  1C5,  1G6. 
QUESTIONS  OF  SCIENCE,  ART  AND  TRADE. 
experts  may  testify  on,  8-11. 
meaning  of  the  terms  u  science  "  and  "  art,"  12. 
opinions  of  experts  are  inadmissible  except  in  relation  to,  12-14. 
illustrations  of  what  are  not,  14-18,  114,  147,  152,  153,  154,  155,  162r 
175. 

R. 

RAILROAD  EXPERTS. 

opinions  as  to  the  management  of  trains,  145. 
stoppage  of  trains,  146. 
safe  rate  of  speed,  146. 
possibility  of  avoiding  injury,  146. 
effect  of  leaky  throttle-valve,  140. 
why  train  was  thrown  from  track,  146. 
whether  brakemen  were  in  their  proper  place,  147. 
quality  of  railroad  ties,  147. 
whether  rail  was  laid  properly,  148. 
questions  upon  which  their  testimony  was  inadmissible,  14,  147-145 


2<)2  INDEX. 

HAPE. 

opinions  of  medical  experts  on  questions  relating  to,  94. 

HEAL  ESTATE  AGENTS. 

value  of  their  services  shown  how,  226,  227. 

opinions  of,  on  value  of  real  estate,  219. 
HEAL  ESTATE. 

who  are  competent  to  testify  as  to  the  value  of,  227-230. 
RELIGION. 

opinions  founded  on  a  theory  of  are  ..inadmissible,  18. 
REPUTATION  OF  EXPERTS. 

when  it  can  be  impeached,  49. 

when  other  experts  may  testify  to,  49,  50. 
RHODE  ISLAND. 

statutory  provision  as  to  verification  of  written  law,  12P. 
comparison  of  handwriting,  192. 
special  compensation  of  experts,  253. 
ROAD-BUILDERS. 

opinion  of,  17. 
ROBBERY. 

opinion  of  detectives  as  to  the  manner,  of,  15. 
ROMAN  CATHOLIC  PRIEST. 

an  expert  as  to  sanity,  86. 
ROMAN  LAW. 

practice  of  receiving  expert  testi  1110113"  under.  3. 
JJUPTURE. 

who  may  testify  to  fact  of.  81. 


•SANITY.    See  INSANITY. 
SEAWORTHINESS. 

opinions  as  to,  142,  145. 
SCIENCE. 

the  term  defined,  12. 

questions  to  experts  must  partake  of  the  nature  of,  13. 

expert  must  have  experience  in,  2,  3. 
•SCIENTIFIC  BOOKS.    See  BOOKS  OF  SCIENCE. 
SHEPHERD. 

opinion  as  to  age  of  sheep,  155. 
SHIPWRIGHT. 

opinion  of,  143. 
SKILL. 

expert  must  be  possessed  of  peculiar,  2, 8,  22. 

much  is  left  to  discretion  of  court  in  determining  whether  a  witness 
is.  possessed  of,  23. 

whether  a  witness  has  peculiar  skill,  a  question  of  fact,  24. 


IXDEX.  293 

SKILL— Continued. 

expert  need  not  possess  the  highest  degree  of,  27. 
opinions  of  witnesses  as  to  whether  an  expert  has,  49. 
value  of  opinion  of  expert  does  not  depend  on  degree  of  skill  pro- 
fessed, 59. 
of  phj'sician,  testimony  as  to  in  malpractice  cases,  97. 

SOBER. 

opinion  to  as  to  whether  a  person  was,  5. 

SOCIETY. 

whether  a  physician  to  testify  as  an  expert  should  be  a  member  of  a 
medical,  68,  69. 

SPECULATIVE  DATA. 

the  admis.sibility  of  opinions  based  on,  19. 

SPIRITS. 

opinion  a.s  to  evaporation  of,  115. 

STATUTES. 

of  a  State  are  taken  judicial  notice  of  by  Federal  courts,  120. 

of  the  Federal  Government  are  taked  judicial  notice  of  by  State 

courts,  120. 

of  a  State  providing  for  a  comparison  of  handwriting  are  not  bind- 
ing in  a  Federal  court.  193. 

of  Wisconsin  providing  for  qualifications  of  physicians,  69. 
providing  against  the  disclosure  by  physicians  of  information  ac- 
quired while  attending  a  patient,  71. 
providing  as  to  proof  of  foreign  law,  125. 
verification  of  written  law.  129. 
comparison  of  handwriting,  190. 
detection  of  counterfeit  notes,  etc,  206. 
additional  compensation  to  experts,  253. 
of  New  Hampshire  providing  for  expert  testimony  in  cases  of  value. 

209. 
STOCKBROKER. 

testifying  as  an  expert  as  to  the  law  of  promissory  notes,  133. 
opinion  of  as  to  technical  terms,  107. 

the  course  of  business,  169. 
STOCK-RAISER. 

opinions  of,  155. 
STREET. 

whether  experts  may  testify  as  to  the  sufficiency  of,  17,  IS. 

SUICIDE. 

inadmissible  opinion  as  to,  18. 
SURVEYOR.    See  CIVIL  ENGINEER. 

opinion  inadmissible  as  the  highest  part  of  a  hill,  15. 
opinion  as  to  boundary  marks,  157. 
cannot  give  a  construction  to  a  survey,  157. 
cannot  testify  as  to  safety  of  a  highway,  158. 


294  INDEX. 

SYMPTOMS. 

opinion  of  medical  experts  based  on  patient's  declaration  of,  7->. 

testimony  of  experts  based  on  evidence  of  symptoms,  77,  78. 

of  disease,  medical  testimony  as  to,  79. 

of  poisoning,  chemists  and  physicians  may  testify  to,  108, 109.' 

unreliability  of,  in  cases  of  poisoning,  109. 

of  disease  in  animals,  who  may  testify  to,  116. 


T. 

TAILOR. 

opinion  of,  172. 

TECHNICAL  TERMS. 

testimony  of  experts  as  to.  165-168. 

TELLERS. 

testify  as  experts  in  handwriting,  179. 

the  detection  of  counterfeit  bank  notes,  203. 

TENNESSEE. 

statutory  provision  as  to  verification  of  written  law,  129. 

TESTIMONY.  See  ADMISSIBIMTT  OF  EXPERT  TESTIMONY;  INADMIS- 
SIBILITY  OF  OPINION;  VALUE  OF  EXPETIT  TESTIMONY;  WEIGHT 
OF  EXPERT  TESTIMONY. 

questions  should  not  call  for  a  critical  review  of,  37. 

expert  not  to  reconcile  conflicting,  38. 

whether  an  expert  must  hear  all  the,  39. 

should  tend  to  establish  every  fact  embraced  in  a  hypothetical  ques- 
tion, 39,  40. 

expert  cannot  express  opinion  as  to  value  of  testimony  of  other  ex- 
perts, 50. 

weight  of,  a  question  for  the  jury,  58. 

of  experts,  to  be  considered  like  any  other  testimony,  59. 

right  of  jury  to  exercise  an  independent  judgment,  60. 

expressions  of  opinion  by  the  court  as  to  the  weight  of,  61. 

instructions  as  to  the  nature  and  weight  of,  62-65. 

the  value  and  weight  of,  65. 

reference  to  a  master  to  take,  in  cases  of  alleged  hnpotency,  101. 

testimony  of  medical  experts  in  cases  of  alleged  impotency  to  be 
received  with  caution,  103. 

illustration  of,  by  the  use  of  diagrams,  83,  112. 

of  experts  as  found  in  the  reports,  reading  from,  251. 

relation  of  scientific  books  to  expert  testimony,  234. 

TEXAS. 

statutory  provision  as  to  verification  of  written  law,  129. 
to  comparison  of  handwriting,  192. 

TEXT  BOOKS.     See  BOOKS  OF  SCIENCE. 

right  of  experts  in  legal  science  to  cite,  138. 


INDEX.  2i»5 

TRADE. 

one  experienced  in,  an  expert,  1. 

as  an  '-art,"  12. 

expert  testimony  admissible  in  questions  of,  8. 

the  testimony  of  experts  in  the  various  trades,  141-175. 
TRADE  MARKS. 

opinions  of  experts  in,  162, 163. 

TOBACCO. 

opinion  of  an  expert  in,  171. 
TRANSLATION  OF  WRITINGS. 

by  persons  of  skill,  164. 

U. 

UNDERWRITERS. 

when  they  may  testify  to  the  materiality  of  concealed  facts,  US,  150, 
151. 

opinion  of,  as  to  increase  of  risk,  149,  151. 
USAGE  OF  COURTS. 

as  shown  by  testimony  of  lawyers,  139. 
USAGE  OF  TRADE. 

evidence  as  to,  is  inadmissible  when.  163. 

who  are  competent  to  testify  as  to,  169. 


VALUE  OF  EXPERT  TESTIMONY. 

is  a  question  for  the  jury,  58,  65. 

upon  what  it  depends,  59,  66. 

instructions  as  to  the,  61-65. 

expressions  of  judicial  opinion  as  to,  in  miscellaneous  cases  of  ap- 
pendix, "A." 

expressions  of  judicial  opinion  as  to,  in  the  investigation  of  hand- 
writing, appendix  "  B.'' 

expressions  of  judicial  opinion  as  to,  in  the  case  of  medical  experts, 

appendix.  '•  C." 
VALUE. 

as  a  subject  for  expert  testimony,  208. 

the  doctrine  in  New  Hampshire,  209. 

when  the  opinion  of  experts  are  inadmissible  on  questions  of.  210. 

opinions  as  to  the  amount  of  damages,  211-213. 

the  admissibility  of  the  opinions  of  non-professional  witnesses  on 
questions  of,  213. 

qualifications  of  experts  in  value,  214-216. 

whether  the  expert  should  see  the  property,  216-218. 

time  of  examination  of  the  property  by  the  expert,  218. 

competency  in  particular  cases,  218-222. 


296  LNDEX. 

VALUE— Continued. 

value  of  legal  services,  222. 

value  of  services  of  physicians  and  nurses,  224. 

value  of  services  in  other  callings,  226. 

opinions  as  to  the  value  of  real  estate,  227. 

the  value  of  annuities,  230. 

the  value  of  foreign  currency  and  negotiable  securities,  232. 
VETEEINARY  SURGEON. 

testimony  as  to  disease  in  animals,  116. 
VIOLENCE. 

opinion  as  to  whether  death  was  caused  by,  21. 
VOICE. 

identification  by  means  of,  5,  n.  2. 


WEIGHING  TESTIMONY. 

is  the  province  of  the  jury,  58. 

right  of  jury  to  exercise  an  independent  judgment  in,  60. 
WEIGHT  OF  EXPERT  TESTIMONY. 

depends  on  what,  59. 

instructions  as'to,  61-65. 
WISCONSIN. 

statutory  requirements  as  to  the  qualifications  of  physicians,  69. 

statutory  provision  as  to  disclosure  by  physicians  of  information/ 
acquired  while  attending  a  patient,  71. 

statutory  provision  as  to  verification  of  written  law,  130. 

pi-oof  of  foreign  law,  125. 

WITNESSES.    See  COMPETENCY  OF  EXPERTS  —  CREDIBILITY  OF  EX- 
PERTS—EXAMINATION OF  EXPERTS  — CROSS-EXAMINATION. 

exclusion  of,  from  court  room,  53. 

right  to  limit  number  of,  54. 

selection  of  expert,  55. 

may  be  examined  to  determine  the  qualification  of  experts,  25. 
WORDS. 

defining  technical  words  to  jurv,  165. 

expert  testimony  as  to  technical  words,  166-168. 
WOUNDS. 

opinions  as  to  the  natural  and  probable  results  of,  81. 

which  of  two,  caused  death,  82. 

that  a  wound  was  inflicted  after  death,  82. 

opinion  as  to  position  of  body  when  struck,  S3. 

experiments  upon  a  dynamometer,  84. 

by  what  instrument  produced,  opinion  as  to,  84. 

whether  they  were  produced  accidentally.  84. 

who  are  competent  to  express  opinions  as  to  instrument  used.  8r»_ 

opinions  of  non-professional  witnesses  as  to.  82. 


INDEX.  21)7 

WRITERS  ON  MEDICAL  JURISPRUDENCE. 

views  of,  on  exclusion  of  medical  treatises  from  evidence.  240. 

views  of,  as  to  additional  compensation  to  experts.  255. 
WRITINGS.    See  HANDWRITING 

translation  of.  164. 

expert  cannot  give  construction  to.  1(55,  166. 

whether  in  a  simulated  hand.  182. 

whether  touched  with  a  pen  a  second  time.  1S2. 

whether  made  with  a  pen.  1S3. 

whether  made  by  the  same  person  and  at  same  time.  183. 

which  was  written  first,  183, 

opinion  as  to  the  alternation  of,  1S4. 

opinions  as  to  illegible.  184. 

whether  of  ancient  or  recent  date.  185. 

who  may  testify  to  the  age  of.  186. 
WRITTEN  LAWS.    See  FOREIGN  LAWS. 

distinction  between  written  and  unwritten  law  as  to  mode  of  proof. 
123. 

law  presumed  to  be  unwritten,  124. 

expert  testimony  in  connection  with,  124. 

statutory  provision  as  to,  125. 

rule  in  England  as  to  proof  of.  126-129. 

statutory  provision  as  to  verification  of,  129. 


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